Documents on the Lord Lyon


This page gathers documents on the powers and practice of Lord Lyon and his Court.
 

Contents

Acts on Authority


The statutory basis for the jurisdiction of the Lyon King of Arms consists mainly of three Acts of the Scottish Parliament, of 1587, 1592 and 1672. (The Act of the British Parliament of 1867 mainly reorganized the Court and set the salaries of the Scottish officers of arms).

The Officers of Arms Act of 1587

Act for reformation of the extraordiner nowmer and monyfauld abuses of officiaris of Armes (1587 cap. 46)

Oure Souerane Lord and thrie estaitis of Parliament Considering how of late yeiris thair is enterit in the office of armes sindry extraordinar masseris and pursevantis and a verie greit nowmer of messingeris throw importune suit of diuerse pairtijs in sic a confusit and incertane maner that it is becum doubtfoull quha ar admittit and how and quha deprived or not or quhidder thair cautioneris be levand or depairtit this lyff And seing thair wes alwayes in tymes of best governament a certane nowmer of officiaris of armes IT is thairfoir thocht expedient statute and ordanit That in tyme cuming thair salbe onlie tua hundreth personis weirand and beirand our souerane lordis armes in the haill boundis of the realme of scotland In quhilk nowmer lyoun king of armes and his brether the ordiner herauldis masseris and pursevantis salbe comprehendit being in nowmer xvij personis and the remanent to be diuidit amangis the remanent schirefdomes of the realme in maner efterfollowing That is to say within the schirefdome of orknay and zetland iiij within the schirefdome of Inuernes and cromartie x within the schirefdome of Narne ij within the schirefdome of elgin and foress v within the schirefdome of Banff iiij within the schirefdome of aberdene xij within the schirefdome of kincardin iiij within the schirefdome of forfare x within the schirefdome of fyff x within the schirefdome of kinross j within the schirefddome of clkamannan ij within the schirefdome of perth and stewartries of menteyth and stratherne xij within the schirefdome of striuiling v within the schirefdome of Dunbartane iiij within the schirefdome of lynlythgw iiij within the schirefdome of Edinburgh principall xxiiij within the schirefdome ofedinburgh and constabularie of hadingtoun iiij within the schirefdome of berwick iiij wi within the schirefdome of Roxburght viij within the schirefdome of selkirk ij within the schirefdome of peibles iij within the schirefdome of lanerk x within the schirefdome of renfrew iiij within the schirefdome of Ergile and tarbert iiij within the schirefdome of bute ij within the Schirrefdome of air xij within the schirefdome of wigtoun iiij within the schirefdome of Dumfries and stewartries of kirkcudbricht and annerdaill xij And to the effect that the ordour now appoyntit may tak the better effect Oranis and commandis lioun king of armes That he onnawyse ressaue ony maner of personis to the office of messingerie in tyme cuming except it be in the place of ane of the personis that salbe thocht meit to be retenit efter the first day of nouember nixtocum to be his deceise or deprivatioun Notwithstanding ony precept or warrand gevin or to be gevin in the contrair Quhairin gif he failye he sall incur the indigniatioun of our souerane lord and the persoun saa admittit salhave na place to vse and exerce the said office nor his executionis quhatsumeuer sall nawyse be valide in Judment or outwith .... Oure souerane lord ordanis .... for all complaintes to be maid to lyoun king of armes vpoun the defaultis of officaris in tyme cuming he sall sett twa peremptour [Courtes] in the yeir to be haldin in Edinburgh vpoun the sext day of maij and the sext day of november gif thai be lauchfull and failyeing thairof the nixt lauchfull dayes and sall summound the pairtie complenit vpoun be his precept conteneand the cause of the complaint relevantlie libellit and cause summound the personis accusit and his cautioner on xv dayes warning and deliver thame copies Concluidand incaise the officiar be fund culpable not onlie his deprivatioun fra the office Bot his cautioner to Incur the pane quhairof the thrid pairt sall appertune to the said lyoun king of armes for his laubouris And that his actis and decreitis be formally writtin and registrat and patent to all our souerane lordis lieges havand interesse and siclike lettres conforme to pas thairvpoun as vpoun the decreitis of quhatsumeuer Juges ordiner within this realme

The Lyon King of Arms Act of 1592

Act concerning the office of lyoun king of armes and his brether herauldis (1592 cap. 127)

(1) Oure souerane Lord and estaitis of this present parliament Considdering the greit abuse that hes bene amongis the leigis of this realme in thair bearing of armes vsurpand to thame selffis sic armes as belangis nocht vpon thame Sua that it can nocht be distinguischit be thair armes quha ar gentlemen of blude be thair antecessouris Nor yit may it be decernit quhat gentlemen ar descendit of noble stok and linage ffor remeid quhairof his hienes with aduise of the saidis estaitis hes evin and grantit and be this present act gevis and grantis full power and commissioun to lyoun king of armes and his brether herauldis To visite the haill armes of noblemen baronis and gentlemen borne and vsit within this realme And to distinguische and discerne thame with congruent differences and thaireftir to matriculate thame in thair buikis and Registeris And to put inhibitioun to all the commoun sort of people nocht worthie be the law of armes to beir ony signes armoriallis That nane of thame presume or tak vpoun hand to bear or vse ony armes in tyme cuming vpoun ony thair insicht or houshald geir vnder the pane of the escheating of the guidis and geir sa oft as thay salbe fund contravenand this present act quhaireuir the same armes salbe found grawin and paintit to our souerane lordis vse And lykwayis vnder the pane of ane hundreth pundis to the vse of the said lyoun and his brether herauldis And failyeing of payment thairof That thay be incarcerat in the narrest prissone Thairin to remane vpoun thair awin chargis during the plesur of the said Lyoun

[section 2 repealed by the Scottish Laws Revision Act of 1906]

(3) ITEM In consideratioun of the greit abuse of messingeris and officiaris of armez within this realme quhilkis for the maist pairt ar nocht qualifiet for vsing of the said office Being admittit be extraordinar and Inoportune suittis Be quhais abuse the leigis of this realme ar heavelie trublit and opprest Thairfoir It is statute and ordanit that the said king of armez be aduise of the loris of counsaill and sessioun deprive and discharge all sic officiaris and messingeris of armes as he sall find vnworthie of the office and tak sicker souirtie of the remanent for thair obseruatioun of thair Iniunctionis in tyme cuming With power to the said king of armez with aduise of the saidis lordis to enjoyne further necessar Iniunctionis to the saidis messingeris for keping of guid ordour in thair offices ...

[sections 3 and 4 repealed by the Scottish Laws Revision Act of 1906]

(5) ITEM Last that becaus the Jurisdictioun of the lyoun king of armez is nocht able to execute dew punishment vpoun all personis that salhappin to offend in the office of armezz Thairfoir our souerane lord with auise of his estaitis in parliament Ordanis and commandis all ciuile Magistratis as thay salbe requirit be the king of armez or ony vtheris in his Name To concur with him To sie the actis maid in his fauouris of his office put to dew executioun in thair iurisdictiounis As aslua To concur with him to the pvneisment and incarceratioun of all sic personis as sall vsurp the bearing of his Maiesties armes efter dew depriuatioun vnder the pane of rebellioun and putting of the disobeyaris to his hienes horne With certificatioun to thame and thay failye being requirit lettrez salbe direct simpliciter to put thame to the horne

The Lyon King of Arms Act 1672

Act concerning the priviledges of the Office of Lyon King at Armes (1672 cap. 47)

(italics indicate sections repealed by the Scottish Laws Revision Act of 1906)

Our Soveraigne Lord Considering that albeit by the 125 Act of the 12 Parliament holdin by his Maiesties grandfather in the yeir 1592 the usurpation of Armes by any of his Maiesties leidges without the authority of the Lyon King of Armes is expressly discharged And that in order therto Power and Commission is granted to the Lyon King of Armes or his Deputes to visite the whole Armes of Noblemen Barrons and Gentlemen and to matriculate the same in their registers and to fine in One Hundreth pounds all others who shall unjustlie usurp Armes who should bear none and many of these who may in law bear have assumed to themselvis the Armes of their cheiff without distinctions or Armes which were not caried by them or their predicessors Therfore His Maiestie with advice and consent of his Estates of Parliament Ratifies and Approves the forsaid Act of Parliament And for the more vigorous prosecution therof Doth hereby Statute and Ordain that lettirs of publication of this present act be direct to be execute at the mercat cross of the heid Burghs of the Shires Stewartries Bailliaries of Royaltie and Regallitie and Royall Burrowghs chargeing all and sundry [Prelates] Noblemen Barons and Gentlemen who make use of any Armes or Signes armoriall within the space of one yeir aftir the said publication to bring or send an account of what Armes or Signes armoriall they are accustomed to use and whither they be descendants of any familie the Armes of which familie they bear and of what Brother of the ffamilie they are desended With Testificats from persones of Honour Noblemen or Gentlemen of qualitie anent the verity of their haveing and useing those Armes and of their descent as afoirsaid to be delivered either to the Clerk of the Jurisdiction where the persones duells or to the Lyon Clerk at his office in Edinburgh at the option of the party upon their receipts gratis without paying any thing therfore Which Receipt shall be a sufficient exoneration to them from being obleidged to produce again to the effect that the Lyon King of Armes may distinguish the saids Armes with congruent differences and may matriculat the same in his Bookes and Registers and may give Armes to vertuous and well deserving Persones and Extracts of all Armes expresssing the blasoning of the Armes undir his hand and seall of office [For which shall be payed to the Lyon the soume of Tuentie merkes by every Prelat and Nobleman, and Ten merks be every Knight and Baron, and Five merkes by every other persone bearing Armes, and noe more:] And his Maiestie hereby Dispensses with any penalties that may arise be this or any preceiding act for bearing Armes befor the Proclamation to be issued hereupon And it is Statute and Ordained with consent forsaid that the said Register shall be respected as the true and unrepeallable rule of all Armes and Bearings in Scotland to remain with the Lyon office as a publict Register of the Kingdome and to be transmitted to his Successors in all tyme comeing And that whosoevir shall use any other Armes any manner of way aftir the expireing of year and day from the date of the Proclamation to be issued hereupon in maner forsaid shall pay One Hundred pounds money toties quoties to the Lyon and shall likewayes escheat to his Maiestie all the moveable Goods and Geir upon which the saids Armes are engraven or otherwise represented And his Maiestie with consent forsaid Declaires that it is onlie allowed for Noblemen [and Bishopes] to subscrive by their titles And that all others shall subscrive their Christened names or the initiall letter therof with there Sirnames and may if they please adject the designations of their Lands prefixing the word Of to the saids designations And the Lyon King at Armes and his Brethren are required to be carefull of informeing themselvis of the contraveiners heirof [and that they acquaint his Maiesties Councill thewith, who are hereby impowered to punish them as persones disobedient to, and contraveiners of the Law:]  It is likewise hereby Declaired that the Lyon and his Brethren Heraulds are Judges in all such causes concerning the Malversation of Messingers in their office and are to enjoy all other priviledges belonging to their Office which are secured to them by the Lawes of this Kingdome and according to former practice.

Court Cases

Sundry Barons v. Lord Lyon, June, 1673

(source:  Brown's Supplement, iii. 6).
 

1673. June.         Sundry BARONS, &c. against The LORD LYON.

ABOUT the same time, in June, 1673, I heard of a process some Barons and Gentlemen had intended against my Lord Lyon, to hear and see it found and declared that he had done wrong in refusing to give them forth their coats of arms with supporters, whereof they and their predecessors had been in possession past all memory, and never quarrelled till now; and, therefore, that he might be decerned to immatriculate them so in his register, and give them forth an extract; conform, as is provided by the late act of Parliament in 1672. The Lyon's reason is, because, by an express letter of his Majesty's, none underl the dignity of a Lord must use supporters. (He grants them now to some who were: in possession of them of old.).  [7] But the gentlemen answer, that Lords at the beginning, having been only Barons, and in regard of the considerable interest they hid in their respective shires, being commissionate from the small barons and freeholders to represent them in Parliament, they, because of that credit, got first the denomination of Lords, without any patent or creation; and, upon the matter, were nothing but Barons: and so what is due to them is also due to the other, they originally not differing from the rest by any essential or superior step of dignity. So Craig, pages 78 and 79.—REPLIED, Whatever was their rise, the other Barons have clearly acknowledged a distinction now; in so far as they have renounced their privilege of coming to Parliaments by the 113 act in 1587; and the distinction being made, and their privileges renounced, by the small Barons in the Parliament 1427. DUPLIED, that act is introduced in their favours, and nowise -debars them ; but allenarly dispenses with their absence, and the penalty they incurred thereby, &c. The Gentlemen found on the Interdictum uti possidetis : the Lyon says, it is but vetustas erroris, and an usurpation.

The complainers are the Lairds of Dundas, Halton, Polmais, &,c.

Advocates' MS.  No. 393, folio 216.
 

Procurator-fiscal of the Lyon Court v. Murray of Touchadam

(source: Brown's Supplement, V 490.  See also Morison's Dictionary, 7656; Decisions of the Court of Session. Edinburgh, 1797, vol. 3, p. 360).

1776 6. December 20. PROCURATOR-FISCAL of the LYON-COURT against MURRAY of TOUCHADAM.
 

A summons before the Lyon Court having been brought at the instance of Procurator-Fiscal against Murray of Touchadam, concluding for payment of the statutory penalty for wearing arms though not matriculated, and for confiscation of the moveables upon which they were engraved; the Lyon Court [491] gave decreet in terms of the libel.  Mr Murray presented bill of advocation, which was past.  Pleaded at discussing for the  Lyon:—the advocation is incompetent; his jurisdiction, as to arms, is privative  and independent. But Lord Hailes, 30th  November 1774, "Repelled the declinature, and sustained the jurisdiction of the Court of Session:  Found the advocation competent in respect that the question at issue was a civil cause; neither is there any statute pointed out by the pursuer whereby the radical or consuetudinary jurisdiction of the Court of Session in matters of this sort, stands abolished;" and, 26th July 1775, the Lords adhered.  And, by interlocutor of date 30th November 1774, the Lord Hailes, Ordinary, "Ordained, the pursuer to set forth,—1mo, Whether there are, in the Lyon Office, any register or authentic books of armorial bearings, of a date prior to the statute 1672 ; 2do, Whether there is in the Lyon Office a connected series of registers from 1672 unto this present day ; and, if not, what chasms there are in the register, and whether there is evidence that any volume of such register is lost or amissing; 3tio, To set forth whether it is proposed to matriculate the arms of the defender, as of one entitled to bear arms in matriculation, or to give arms to him as a well-deserving person, in terms of the Act 1672 ; and, if the former is proposed, what are the arms which Murray of Touchadam ought  to bear on a matriculation: And, whereas it is said for, the pursuer, that one reason for demanding larger fees from a gentleman than the sum of ten merks, specified in the statute 1672, is, that an expense must be incurred for illuminating the arms on the margin of the instrument of matriculation ; the Lord Ordinary requires the pursuer, 4to, To explain the use and intention of such illumination, when it is considered that the science of heraldry has its own terms of art, precise and fixed, and which may serve as a certain directory to all painters, engravers, and others, for properly delineating the arms of every family respectively, on wheel-carriages, plate, and household furniture: Moreover, the Lord Ordinary appoints the defender to lodge, in the hands of the clerk to the process, the most ancient seals, impressions of seals, or other evidence that he is possessed of, or can procure, for proving, that, before the 1592, or before the 1672, the Murrays of Touchadam did actually bear ensigns armorial."

In answer to these questions the pursuer did set forth, that there was no public authentic record of arms in the Lyon office prior to the year 1672. The tradition was, that most of the old records of arms were destroyed by fire ; there are, however, in the office several old manuscript books of heraldry which are of great use in matriculation.

The matriculations, since the year 1672, are all contained in one very large folio, in manuscript, on vellum ; and from the institution of said register to the present time the entries are regular, only until of late they did not mention dates. As to the arms to be given Mr Murray, when he applies for them it was time enough to answer this when he did so; and as to the illuminations, they are used for the better direction of painters, or carvers, many of whom are not sufficiently instructed in the science of heraldry without illuminations.

Upon advising the cause, the Lord Ordinary pronounced this interlocutor: — 13th February 1776, "Finds, that it is admitted by the procurator-fiscal that William Murray, the raiser of the advocation, is the representative of the ancient family of Murray of Touchadam: Finds it proved, from the seals produced [492] in process, that the Murrays of Touchadam, the predecessors of the said William Murray. were in public possession of a coat armorial in 1511 and 1568, long prior to the Act of Parliament 1592: finds that this public possession has been continued in the family of the Murrays of Touchadam unto the present times, with respect to charge, as well as with respect to field: finds, that it must be presumed, since no evidence is offered to the contrary, that the colours of field and charge were the same anciently as now: finds it proved, by the evidence produced, or referred to, and not contradicted, that, ever since the year 1660, the family of Murray of Touchadam has been wont to give or bear the supporters, crest, and device which the said William Murray now gives or bears: finds, that such long possession infers an antecedent right, or excludes all challenge on account of defect of such antecedent right : finds,—that although the Procurator-fiscal has been called upon, by an interlocutor of the Ordinary, specially to set forth whether it is proposed to matriculate the arms of William Murray of Touchadam as of one entitled to bear arms on matriculation, or to give arms to him as a well-deserving person, in terms of the Act 1672; and of the former, is proposed, what are the arms which Murray of Touchadam ought to bear on matriculation ;—yet that he refuses to make any answer to this question, which is plain, and can be answered by any one, versant in the science of heraldry : Therefore, and upon the whole, finds, That the representative of the family of Touchadam was entitled to be matriculated, in terms of the statute 1592 and 1672, for the armorial bearings whereof William Murray of Touchadam, raiser of the advocation, is in possession. And having considered the original precept or summons at the instance of the Lord Lyon and the Procurator-fiscal of Court against the said William Murray, finds,—That the conclusions thereof are altogether penal ; and having considered. the state of the register of the Lyon-office, as set forth by the Procurator-fiscal himself, finds, That the said register affords not sufficient evidence as to what armorial bearings have been matriculated by the Lyon, and what not:—1mo, Because the register is so framed that any chasms therein cannot ex facie be discerned ; 2do, Because it is admitted that the armorial bearings of certain persons matriculated did not appear. therein till of late: that the present Lord Lyon has become more attentive to the duties of his office than his predecessors ; and, therefore, finds, That it is not proved whether the armorial bearings of. Murray of Touchadam have been actually matriculated in the Lyon register or not : that William Murray was not in mala fide to continue the use of the armorial bearings which his predecessors enjoyed ; and that there is no sufficient warrant for the penal conclusions of the original summons: and upon the whole assoilyies the said William Murray, and decerns; reserving always to the Procurator-fiscal to charge the said William Murray to matriculate his armorial bearings in the registers of the Lyon Court, in terms of the statute 1672, and to pay the fees exigible from a baron, and no more, as the statute bears: and also reserving to the officers of Court to exact whatever further sum may be judged reasonable, in case the said William Murray shall incline to be furnished, not only with a. blazoning, in terms of the art, but also with a painting in water colours and other ornaments, these being things which the Lord Lyon is not bound by law to  provide without a suitable remuneration."
[493]
The  Lords, on  advising a reclaiming petition and answers, 4th December 1776, adhered to the interlocutor of  the Ordinary, and refused the petition,
except as to the fees exigible on matriculations; as to which, remitted to the Ordinary to hear parties further, and to do as he should see cause.

In reasoning, the Lords made a distinction betwixt a right to wear arms and matriculation. in the first,   immemorial possession would presume a grant even from the Sovereign himself to wear them; and many families in Scotland had right to arms before the Act 1592 ; so did not derive right to wear them from the Lyon in virtue of that Act of Parliament. But, as to matriculation, in consequence of the Act 1672, that was requisite in every case, and is so found by the Ordinary in this case. The fees, no doubt, are fixed by the Act 1672, but Lord President thought that, as in other regulations of fees about that period, practice and change of times had introduced an alteration ; so this might be the case here, and therefore he proposed to remit that point to the Ordinary to hear further; which was agreed to.

20th December 1776, the Lords refused a reclaiming petition without answers, and adhered.

And again, 25th June 1778, the Lords, on report of Lord Hailes, found that the Lyon can exact no higher fees for Mr Murray of Touchadam's arms than ten merks, being the fees exigible by the statute 1672 from a baron; and found the Lyon liable in the expense of process prior to the last remit, and of the whole extract of the decreet. They thought the plea, so far as concerned the matriculation-fees, not improper; as the statute was so ancient, and the practice for at least twenty years against it, though not uniform. But, as to the former parts of the process concerning Mr Murray's  right to arms, and the jurisdiction of the Lyon, they thought them unjustifiable, and that the Lyon was liable in the expenses incurred on that account; and, 9th July 1778, they refused a reclaiming petition without answers, and adhered.

Dun of Dundas v. Dundas of Fingask, 22nd January, 1762

(source: Brown's Supplement, V 493.)

1762. January 22. DUNDAS. of DUNDAS against DUNDAS of FINGASK.

The Laird of Dundas complained to the Lyon, That Dundas of Fingask had got from the Lyon's predecessor, in the year 1744, a grant of an armorial bearing, to which he and his predecessor had right many ages before. The matter was brought before the Lords by an advocation at the instance of Fingask. Dundas disputed the competency; but this plea was soon abandoned, and on the merits the Lords, 22d January 1762 pronounced this interlocutor:

" Finds, That George Dundas of Dundas, heir-male of James Dundas of that ilk, who was forfeited in the year 1449, but afterwards rehabilitate, has the sole right to use and bear the coat of arms belonging to Dundas of that ilk, as matriculated in the register, authenticated by the subscription of Sir James Balfour then Lord Lyon ; and find, That the coat of arms obtained in the 1744, by Thomas Dundas, defender, from the late Lord Lyon,, was obtained by obreption, and that he has no right to use the same; and therefore or[494]dain the said coat of arms to be recalled and expunged from the Lord Lyon's books, reserving to the said Thomas Dundas to apply for a new coat of arms, as accords: Find the defender Thomas Dundas of Fingask, and Thomas Dundas of Quanal, liable to the pursuer in the expense of the complaint before the Lord Lyon's court, and in the expense of this process of advocation," &c.

And to this interlocutor the Lords adhered.

Moir v. Graham, 5th February, 1794

(source: Morison's Dictionary, 15537)

1794. February 5.

DR. ROBERT MOIR against DR. CHARLES ALEXANDER GRAHAM and Others.

George Moir, in 1787, executed an entail of the estate of Leckie, with strict irritant and resolutive clauses. Among others, it contained the following condition:

"Nor shall it be in the power of the heirs-male of my body, or other heirs foresaid, substituted to them, to increase the rental above £.1000 Sterling per including kain and casualties, so as the rents may be always well and regularly paid ; but without prejudice to the heir in possession to take grassums for any lease he may grant, not exceeding 19 years, of any part of said lands."

The rental of the estate, at the date of the entail, was £.895 Sterling ; and when the leases expired, Mr. Moir augmented it, without any regard to this clause.

In 1791 he executed a deed, where, after making some alterations, but none on this clause, "he approves of the foresaid deed of entail, in all the other articles and clauses thereof."

At the time, however, when he executed this last deed, the rental of the estate exceeded £. 1000; and at his death, in 1792, it amounted to £. 1123 6s. without including any rent for 150 acres in his natural possession.

Dr. Robert Moir succeeded him, under the entail, and brought an action against the substitutes, concluding, that the said George Moir having increased the rental above the sum of £.1000. had thereby revoked the above-cited clause; and that, therefore, the pursuer should be at liberty to keep up and augment the rent of the entailed estate, as freely as if it had not been inserted. In support of this conclusion he

Pleaded: As the clause in question has been so far infringed by the entailer himself that it cannot be complied with in terminis, it must be wholly at an end. It does not prohibit the entailer from maintaining the rental as he found it ; and it would not be the prohibition in the entail, but a new and a different one, which would restrain the heir in possession from increasing it still farther, at the expiration of the current leases.

Answered : The deed of alteration executed by Mr. Moir, revoking certain clauses of his entail, and approving of all the others, at a period when he had raised his rental to above £.1000, precludes any presumption that he meant to recal the condition in question. Indeed, supposing he had not made such a deed, there would have been no room for that presumption. By taking a higher rent himself, he exercised the right of an unlimited proprietor; but did nothing which   was inconsistent with his intention of circumscribing the powers of his successors. The surplus rent, which he himself stipulated, may no doubt be levied by the Pursuer; but were he to renew the current leases, without confining the rent of the whole estate to £.1000, as he would then, by a voluntary act of his own, [15538] be violating the terms of the entail he would be guilty of an act of contravention.

The Lord Ordinary reported the cause on memorials.

After a good deal of reasoning, the Court came to be of opinion, That the clause was to be held as discharged by the entailer, rebus ipsis et factis. Some of the Judges at first doubted, whether succeeding heirs could raise the rental above the sum it amounted to at George Moir's death ; but it was observed, That even if this had clearly been his intention, yet, as limitations on property were unfavourable, and as the clause did not contain that precise prohibition, it ought not to be inferred by implication. The entail contained no clause obliging the heirs in succession to diminish the rental ; and no heir in expectancy could have an interest to insist on his doing so.

It was accordingly found, unanimously, "That the tailzier having, in his own life-time, raised the rent beyond £.1000 Sterling yearly, the clause restraining the heirs of entail from increasing the rent of the tailzied estate beyond that extent was thereby virtually revoked by the tailzier himself, and is now at an end."

The entail likewise contained the following clause And that the heirs of tailzie foresaid, succeeding in virtue hereof, shall be bound to use the name and title of Moir of Leckie, and that alone, exclusive of every other name and title; and to carry the arms of Moir of Leckie, without any addition, diminution, or alteration of any kind."

After the action came into Court, it was discovered that there were no arms of Moir of Leckie matriculated in the Lyon-office. The pursuer being the heir, alioqui successurus only in one fourth of the estate, as representative of one of four heirs-portioners, it was likewise doubted, even if there had been such arms, whether they were assignable to heirs of entail, or whether they necessarily descended, jure sanguinis, to Mr. Moir's heir of line.

The following conclusion was therefore added to the summons: That the said pursuer, and the heirs of entail foresaid, are under no restraint with regard to the carrying of any particular arms, as the arms of Moirs of Leckie, and are exposed to no challenge for disregarding the clause in the entail ; or, at least, that the pursuer and each succeeding heir, shall be at liberty to obtain arms from the Lyon-office, and, whatever they may be, to wear and use them. as the arms of the Moirs of Leckie; and if used, without addition, diminution, or alteration of any kind, by the pursuer and  the said heirs, that this shall be held sufficient implement of the provision relating to the arms in the entail."

The defender contended, That it was a lawful condition in a tailzie to a stranger that he should bear the granter's arms ; and quoted Sir George Mackenzie's Essay on Heraldry, p. 70. as supporting this opinion.

On the other hand, it was stated for the pursuer, That he wished, as far  possible, to comply with the entailer's intention; but that he  was advised, that even [15539] where  there were arms in a family, they could not descend to a tailzied succession, without certain distinctions. And he quoted the case put in L. 27. D. De  Condit. et demonstrat. (Lib. M. Tit. I.) as analogous to the present; and as suggesting,  the condition in question should be so modified by the Court as to make it consistent with the law of the land.

The Lords " found it incumbent on the pursuer, and the other heirs of entail, to follow out the tailzier's appointment, in carrying the name and arms of Moir of Leckie ; and, for that purpose, to obtain from the Lyon-office arms of that description, descendible to the heirs of entail of Leckie."

Lord Reporter, Justice-Clerk. Act. Maconochie. Alt. Bell.  Clerk, Gordon.
R. D.                                                                     Fac. Coll. No. 101. p. 224.

Macdonnell v. Macdonald 
3 Shaw and Dunlop 371

Case decided in the Court of Session Jan. 21, 1826.

Macdonell of Glengarry brought an action in the Court of Lyon, asking for annulment ("reduction") of a matriculation of arms to Macdonald of Clanranald. It was pleaded in limine that the action was incompetent before the Court.

The Lord Ordinary (i.e. Lyon), before answer as to the pursuer's title, made avizandum with the cause to the Lords of the Second Division of the Court, and ordained parties' procurators to prepare informations thereon as to the competency of the action in this Court." Informations were accordingly lodged, in which the pursuer pleaded,—
1. that prior to 1672, the Lyon had no jurisdiction in matters of arms, the cognisance of which belonged solely to the Privy Council, and the Supreme Civil Court, which had also the power of reviewing all the proceedings[372] of the Lord Lyon;—
2. That the act 1672 neither made the jurisdiction of the Lyon Court privative, nor took away the power of reviewing all the proceedings of the Lord Lyon;—
3. That, at all events, this Court undoubtedly had jurisdiction in all competitions of arms, as they in reality raised questions of patrimonial interest.
On the other hand, it was maintained for the defender,
That the act 1672, by declaring that the Lyon record should "be respected ass the true and unrepealable rule of all arms and bearings in Scotland," conferred a privative jurisdiction in such matters on the Lord Lyon; and that even if this Court had jurisdiction in competition of arms, the pursuer did not set forth his right to those matriculated by the defender.

The Court dismissed the action as incompetent.

Lord Robertson.—The question taken to report is merely in regard to the jurisdiction of this Court, in determining which it is necessary to consider the nature of the Lord Lyon's powers. These relate to two separate and distinct matters,—one regarding messengers, and the other, which we have to do with here, relating to armorial bearings. The power of granting ensigns armorial is part of the royal prerogative, but every thing belonging to that power has been given by sundry statutes to the Lord Lyon's grant. His power to new armorial bearings is merely discretionary and ministerial, and with that this Court cannot interfere. But if the Lord Lyon should grant to one person arms which another is entitled to bear, and should refuse to give redress, there could be no doubt of the jurisdiction of this Court to entertain an action at the instance of the party to have his right declared, as this would involve a question of property, which a right to bear particular ensigns armorial undoubtedly is. But a question remains behind, whether the summons in the present case is so conceived, that it could be entertained by any Court. The pursuer had his own arms matriculated in 1797, and he does not say that they are erroneous; nor does h set forth in his summons that he is the true chieftain or that he has right to the arms of the defender. There is no conclusion in favour of his right to these arms; so that, were he to obtain decree in terms of his libel, he could take nothing under it. Popular actions are unknown in our law, and no one can bring an action to take from another what he himself has no right to. I also doubt whether this Court has any original jurisdiction in matters of this kind, and whether it was not necessary for the pursuer to have applied to the Lord Lyon for redress, and on that being refused, to bring the judgment under review of this Court.
Lord Glenlee.—There are in this case separate defences as to the competency and as to the title, and the Lord Ordinary's interlocutor is before answer as to the title. The only question, therefore, properly before us, is the [373] general one, whether this Court is competent to entertain an action as to the right to armorial bearings; and we cannot go into the other defences, that the pursuer has no title or interest, or that his libel is not properly laid. In the case of Murray it was found that the Lyon's jurisdiction was not privative, and this implies that the Court of Session has such a jurisdiction; that a question of this nature, while depending in the Lyon Court, may be brought here by advocation, or, after the thing is done, by reduction; and this I hold to be a well-founded doctrine. We ought therefore to repel the defence so far as founded on defect of jurisdiction, and remit to the Ordinary [Lyon] to hear on the objections to the title and libel.
Lord Pitmilly—A difficulty arises from the way in which the Lord Ordinary's interlocutor is framed, reserving all questions of title. I apprehend, however, that the question of competency which we have to decide is not an abstract point; but whether the particular summons before us be competent. As to the abstract principle, it is clear, that wherever there is a competition as to the right to armorial bearings, an appeal lies to this Court by advocation, and also by reduction, which is the proper remedy when the arms are already granted; or even if the Lyon refuse arms to a party entitled, this Court has jurisdiction to give redress. The Lyon Court is in fact just on the same footing as with other Inferior Courts. But this opinion does not affect the present action, which is not competent, as the pursuer does not claim the arms given to the defender.
Lord Justice-Clerk.—I found it impossible to form a satisfactory opinion without looking to the summons; and I deny the power of a Lord Ordinary to ask the Court for an opinion on an abstract question of law, without reference to the action before him. It is on the competency of this particular action that we are to judge; and I entertain great doubts of its competency, as it does not sufficiently set forth that what the Lord Lyon has done is to the prejudice of the pursuer. In regard to matters of arms, the Lord Lyon has a ministerial power; and unless he invades the rights of others, this Court has no jurisdiction to review his proceedings. There was never a case where the Court entertained an action of this nature, unless it was set forth that the act complained of was to the prejudice of the party bringing it. Now there is no sufficient allegation to this effect here, and I hold that to be essential to the question of jurisdiction.

Cuninghame v. Cunyngham 
(11 Dunlop 1139)

Case decided on June 13, 1849.

No. 187

THOMAS SMITH CUNINGHAME, Advocator. — Mark Napier.
SIR ROBERT KEITH DICK CUNYNGHAM, BART., Respondent. — Innes.

Process.—Advocation.—Lyon.—The judgments of the Lord Lyon in matters of heraldry may he reviewed by this Court.
Statute.—Clause.—Lyon.—A clause in a private Act of Parliament bore—"Whereas the senior heir of line of the family has succession to all their indivisible honours, and specially the right to bear and use their arms and supporters -Be it enacted, that the said rights and arms are hereby reserved entire to such senior heir of line  and that the said D being a younger branch of said family, he and his heirsmale, in taking the name of C, shall do so with a difference or mark of cadence in the arms applicable to such younger branch." D was a baronet, and the heir-male of the family. The Lord Lyon assigned to him the family arms and supporters, "with the badge of Nova Scotia on a canton," for a difference. Held, 1st, That it was not competent for the Lord Lyon to enquire whether the heir of line or the heir-male was entitled to the heraldic honours of the family,that  question being, in this ease, decided by the Act of Parliament. 2d, That under the Act of Parliament the heir of line alone was entitled to supporters, and it was incompetent in the Lord Lyon to grant them to the heir-male. 3d, That "the badge of Nova Scotia on a canton" was not a mark of cadence, and that to assign it as the only difference in the coat of arms, was not a sufficient compliance with the statute.

JOHN CUNYNGHAM of Caprington and Lambrughton was, in 1669, created a Baronet of Nova Scotia, by patent taken to the heirs-male of his body. In 1707, James Dick of Prestonfield was created a Baronet of Nova Scotia, by patent taken to the heirs-male of his body; whom failing, to the heirs-male of his daughter and sole heiress, Janet Dick. This lady was married to Sir William Cunyngham, second baronet of Caprington. Their eldest son succeeded to the title of Caprington, and transmitted the estates to his ion, Sir William Cunyngham, fourth baronet of Caprington, [1140] at whose death, in 1829, the line of the eldest son of the marriage be tween Sir William Cunyngham and Janet Dick determined.

The patent to the baronetcy of Prestonfield, and the entail of that estate  (which was in favour of heirs-male), were so conceived as to exclude from the succession the eldest son who succeeded to Caprington. They passed to Alexander Cuninghame, afterwards Sir Alexander Dick, Bart.$ and, at his death, to his eldest son, Sir William Dick. Sir William Dick died in 1796, leaving only female issue. His title and estates, therefore, passed to his brother and heir-male, Sir Robert Keith Dick, who was also heir-male of the marriage between Janet Dick and Sir William Cunyngham.

On the death of the last baronet of Caprington, in 1829, the title passed to Sir Robert Keith Dick as heir-male of the united families, but the estates, which were unfettered, transmitted to Sir Robert's nieces, the daughters and co-heiresses of his elder brother, Sir William Dick. The eldest, who inherited the mansion-house and manorial rights of Caprington, married John Smith, Esq. ; and their son, Thomas Smith Cuninghame of Caprington, became heir of line of the marriage between Sir William Cunyngham and Janet Dick.

The family of Cunyngham of Caprington never used or enjoyed armorial supporters.

The patent of the baronetcy of Prestonfield authorized the Lord Lyon to give and prescribe such additions to the arms of Sir James Dick as should seem suitable. No advantage was taken of this permission till 1771, when a patent was issued by the Lord Lyon, granting to Sir Alex. ander Dick, then baronet of Prestonfield, the common ancestor of Sir R. K. Dick and Mr Smith Cuninghame, "for supporters, two white horses at liberty, maned and hoofed." These supporters were used by the succeeding baronets of Prestonfield, and were assumed by Sir R. K. Dick on his succession to the title.

In 1829, on his succession to the estate of Caprington, in right of his wife, Mr John Smith Cuninghame applied to the Lord Lyon for liberty to use and bear the plain arms of the families of Cuninghame of Caprington and Dick of Prestonfield, with supporters, as being the head and representative of both families. The Lord Lyon granted permission to him "to bear the plain arms of both families quarterly," but refused his prayer for supporters, "as being founded on a misapprehension of the rules of heraldry, and the practice of the Lyon Court." In a note appended to that decision, the Lord Lyon stated, "that the right to such distinction passes, not to the heir of line, but to the nearest heir-male of the family, even though a distant collateral, provided he can establish his descent."

The entail of Prestonfield contained a prohibition to alienate, and an obligation on the heir to bear the name and arms of Dick. Sir R. K. Dick, being desirous to feu a portion of his estate, applied to Parliament [1141] for the necessary powers. He took that opportunity of applying for Parliamentary sanction to his bearing the name of Cunyngham of Lambrughton and Caprington, the older baronetcy. The bill introduced by Sir R. K. Dick was opposed by Mr Smith Cuninghame, in so far as it sanctioned the assumption of the name of Cunyngham; but he withdrew his opposition on obtaining the insertion of the following clause, which stands sect. 21 of the Act 8 & 9 Vict., c. 23 :" And whereas the senior heir of line of Sir John Cunyngham Baronet of Lambrughton, and of Sir  James Dick, Baronet of Prestonfield," (the common roots and chiefs of the Lambrughton and Prestonfield families,) "has succession to all their indivisible, heritable rights, not carried from him by entail or settlement, and specially has right to use and bear the arms and supporters of his said ancestors Be it therefore enacted, that the said rights and arms are hereby reserved, entire to such senior heir of line; and that the said Sir Robert Keith Dick, being a younger branch of the said families, he and his heirs-male, in taking the name of Cunyngham and arms of Cunyngham of Lambrughton shall do so with the difference, or mark of cadence, in the arms applicable to such junior branch."

Sir R. K. Dick Cunyngham presented a petition to the Lord Lyon founding on the Act of Parliament and praying for permission to bear the arms of Cunyngham of Lambrughton, along with the arms and. supporters of Dick of Prestonfield.

Mr Smith Cuninghame opposed the petition, and craved the Lord Lyon to refuse it, de plano, in so far as regarded the supporters; and in any matriculation that might be given to the petitioner of arms, to give the same strictly in terms of the 21st section of the Act of Parliament, with the proper mark of cadence (or heraldic inferiority), and without supporters, as prescribed by that section.

Mr Smith Cuninghame also petitioned the Lord Lyon for permission to use and bear the arms and supporters of both families, reserved to him as senior heir of line by the Act of Parliament.

In the petition for Sir R. K. Dick Cunyngham the Lyon-depute pronounced the following interlocutor:-" Finds that the petitioner, as head and chief in the male line of the families of Cunyngham of Lambrughton and Dick of Prestonfield, would by the heraldic usage of Scotland, and the practice of the Lyon Court, have been entitled to carry the arms of those families quarterly, without brisure or mark of cadency; but in respect of the enacting portion of the 21st section of the statute referred to in the pleadings, and of consent of the petitioner, appoints the said arms to he used and borne by the petitioner, with the difference aftermentioned, thereby distinguishing them from the arms authorized to be borne by John Smith Cuninghame, Esq., the father of the respondent and objector, and his heirs, by the Lord Lyon's patent in his favour: Accordingly authorizes and appoints the Lyon-clerk to prepare a patent of arms [1142] in favour of the petitioner and his heirs, with the blazon underwritten, viz. :-First and fourth, argent, a sheaf fork sable within a bordure ermine g second and third ermine, a fess azure, betwixt two mollets in chief, and a hare's head erased in base, attired with ten tynes gules; and for difference, on a canton the badge of Nova Scotia: Further, finds that the supporters used and borne by Sir Alexander Dick, the petitioner's father, and after his decease, by Sir William Dick, his brother, maternal grandfather of the respondent, have now, by failure of male descendants of the said Sir Wil. liam Dick, devolved upon the petitioner as heir-male of the family; and accordingly authorizes the Lyon-clerk to add the said supporters to the arms of the petitioner above described ; the destination of the said sup porters being to the petitioner and his heirs-male."

The petition of Mr Smith Cuninghame was simpliciter refused.

Mr Smith Cuninghame advocated both interlocutors.

The respondent pleaded in limine;

The advocation is incompetent. The Court of Session cannot entertain discussions as to the proper blazoning and differencing of arms, a]. though it has in rare instances asserted a right to interfere, where a party alleges that a coat of arms to which he was entitled has been re. fused to him, or granted to another in his prejudice; but that is not alleged here.

 The Lord Ordinary repelled the objection; and having conjoined the advocations, he pronounced the following interlocutor:" Finds that the advocator is served and retoured is heir of line, to 1st, Sir John Cunyngham  of Lambrughton and Caprington, the first baronet of that family; to 2d, Sir William Cunyngham, the second baronet of that family; to 3d, Sir James Dick of Prestonfield, the first baronet of that family; 4th, to Dame Janet Dick, only child of the said Sir James, and wife of Sir William Cunyngham, second baronet of Caprington; and 5th, to Sir Alexander Dick of Prestonfield, fourth son of the said Sir William Cunyngham and the said Dame Janet Dick. 2d, Finds, that by the 21st section of the 8 & 9 Vict., c. 23, it is enacted," (quotes Act is on p. 1141, supra.) "3d, Finds that the advocator has right to use and bear the arms and supporters of his said ancestors, and that, as senior heir of line of the said families of Cunyngham of Lambrughton, and Dick of Prestonfield, he has right to the arms and supporters of the said families. 4th, Finds that
the respondent, as declared a younger branch of the said families by the foresaid enactment, has no right to use and bear the supporters thereof; and that, in taking the name and arms of Cunyngham of Lambrughton, he is bound to do so with the difference, or mark of cadence, in the arms applicable to a junior branch. 5th, Finds that the condition in the award of the Lyon-depute, to the respondent, of the arms of Cunyngham of Lambrughton, of, ' for difference on a canton the badge of Nova Scottia,' does not, according to heraldic usage, denote the difference or mark [1143] of cadence applicable to a junior branch; and, consequently, that the  arms awarded to the respondent have not been awarded with the difference or mark of cadence enjoined by the said enactment; therefore alters the interlocutors complained of, and remits to the Lyon Court, with instructions to award to the advocator, in the matriculation of his arms, the arms and sup porters of the families of Cunyngham, of Lambrughton and Dick of Preston-. field, as the head or senior heir of these houses; and in matriculating the arms of the respondenN to deny to him the- supporters of the said families, and also to recall the award of arms to him, with the difference 'of the badge of Nova Scotia in a canton only, and to award the said arms, with such difference as may suitably and properly, according to the usage. of heraldry, denote the difference or mark of cadence in the arms appli cable to a junior branch, and decorate: Finds the advocator entitled to. the expenses incurred both in this Court and in the Inferior Court, and remits the account thereof, when lodged, to the auditor, to tax and report." *

NOTE.I. The competency of the present proceedings has been finally settled. To many the subject in dispute may appear trivial ; or, on the other hand, in the eyes of the parties, or others who take interest in such matters, it may have acquired undue importance. It is enough for the ' Lord Ordinary to be satisfied, that the subject of the wearing of coats-of-arms is matter of legal right; and this being once settled, the dispute must be considered and determined with a due regard to the interest of the parties, just as much as if it involved largo patrimonial

There are two grounds of complaint made by the advocator :-One, that the respondent has been awarded supporters, which belong to the advocator; and the other, that the arms of the respondent have not been distinguished, as they ought to have been front those of the advocator, by the difference or mark of cadence applicable to a junior branch. In substance, the complaint therefore is, that the arms awarded to the respondent by the Lyon-depute, are legally the arms of the advocator ; and, on the grounds stated in the note to the interlocutor of 16th February 1847, repelling the objection to the competency, and now' acquiesced in, it seems to be indisputable, that into such alleged wrong this .Court is bound to inquire.

II. The advocator is heir of line of the family of Cunyngham of Lambrughton and Caprington. The respondent is the heir-male of that family. The first baronet of the family was Sir John Cunyngham. The second baronet, his eldest son, Sir William, married Janet Dick, heiress of Sir James Dick of Prestonfield. His eldest son, Sir John, was the third baronet, who again was succeeded by his eldest son, Sir William, the fourth baronet, who died in 1829. The succession then opened to Alexander Cunyngham, afterwards Sir Alexander Dick, fourth son of Sir William Cunyngham and Janet Dick, and which Alexander Cunyngham, afterwards Sir Alexander Dick, is the common ancestor of the competing parties.

The respondent is the third son of this Sir Alexander Cunyngham, or Dick, and has undoubtedly both baronetcies. The advocator, on the other hand, is the eldest son of Anne Dick, the eldest daughter of Sir William, who was the eldest son of the said Alexander Cunyngham, afterwards Sir Alexander Dick, the common ancestor.

" The advocator has been served heir of line---1st, To Sir John Cunyngham, the first baronet; 2d,  To Sir William Cunyngham, the second baronet; 3d, To [1144]

Sir James Dick, the first baronet of Prestonfield, and the father of Janet Dick; 4th, To the said ])ante Janet Dick, who married Sir William Cunyngham, the second baronet of Caprington ; and, 5th,  To their fourth son, Alexander Cunyngham, afterwards Sir Alexander Dick, the said common ancestor.

A question arose between the present parties m to which of them is entitled to the full arms and supporters, or, in other words, which is to be considered the head of the family, and which is bound to bear the arms, with a difference or mark of cadence denoting the junior branch. This point, as an abstract question of heraldic succession, is largely discussed in these very learned and interesting pipers. On the one hand, the advocator maintains, that the respondent only represents as heri-male his grandmother, Janet  Dick, and that he is her youngest grandson, while the advocator represents the eldest grandson, and consequently that his female descent, through the eldest grandson, makes him head of the house, and the representative, as to arms at least, in preference to the respondent. This abstract question of the legal succession to heraldic honours is argued by the advocator, in the concluding part of his case, with great force and much learning, and, so far as he is qualified to judge of such matters, the Lord Ordinary is inclined to go along with that argument. On the other hand, the respondent contends, that no heraldic honours can descend through a female, to the exclusion of the heir-male of the family, and he points out various instances which apparently support his views. The matter may be attended with much difficulty, and the impression of the Lord Ordinary may be totally erroneous. It is a great satisfaction to him, however, that he does not feel called on to determine this heraldic dispute, because—

III. He considers it quite clear, that the matter has been settled by Act of Parliament. By the entail of Prestonfield, the respondent was bound to carry the name and arms of Dick of Prestonfield only. But, in the year 1845, he applied to Parliament for liberty to feu portions of the estate of Prestonfield, and also to bear the name and arms of Cunyngham of Lambrughton -along with those of Dick of Prestonfield. The matter of right as to the arms was thus raised between the parties, and seems to have been the subject of anxious discussion. By the 20th section of the Act, permission was given to the respondent and the heirs of entail of Prestonfield, to bear 'the surname of Cunyngham  and arms  of 'Cunyngham  of Lambrughton,' in addition to, 'and along with, the surname  and arms  of ' Dick' and title of 'Prestonfield', without 'incurring any forfeiture or irritancy.'  But this was guarded by the following anxious reservation in the 21st section:—, 'And whereas the senior heir of line of Sir John Cunyngham, Baronet of Lambrughton, and of Sir James Dick, Baronet  of Prestonfield,   has succession to all their indivisible heritable rights not carried from him by entail or settlement, and specially has right to use and bear the arms and supporters of his said ancestors—Be it  therefore  enacted, that the said  rights and arms are hereby reserved entire to such senior heir of line, and that the said Sir Robert Keith Dick, being a younger branch of the said families, he and his heirs-male, in taking the name of Cunyngham; and arms of Cunyngham of Lambrughton, shall do so with the difference or mark of cadence in the arms applicable to such junior branch.'

Now, there can be no question that the advocator is the senior heir of line here described, both of Sir John, Cunyngham and of Sir James Dick, and  the
Act affirms, as matter of law and also of fact, not only that he has succession to  all their indivisible heritable rights, not carried from him by entail or settlement, but specially that he has right to use and beat. the arms and supporters of his said ancestors.  Unless this had been conceded to the advocator it is presumed that the statute would  not have passed.   It is said  that this statute en[1145]joins bad heraldic law, and that the law of heraldry cannot be changed by Parliament-and consequently, that despite the statute, by the unchangeable law of arms, the heir male must be the head of the house. The Lord Ordinary is by no means satisfied that there is any such law of heraldry. But even if it were the common usage to give the arms and supporters to the heir male, in preference to the heir of line, the reverse has been declared by this statute as applicable to this particular case. For the Act, upon the distinct assertion that the advocator has  succession to the indivisible heritable rights, and specially has right to the arms and supporters of his ancestor, enacts, that 'the said rights and arms are hereby reserved entire to such senior heir of line.' But the complaint here is, in the first place, that the arms and supporters, in place of being reserved entire to the advocator, have been awarded to the respondent.

The statute, however, contains the further enactment, that the said Sir Robert Keith Dick, being a younger branch of the said families, he and his heirs male, in taking the name of Cunyngham; and arms of Cunyngham of Lambrughton, shall do so with the difference or mark of cadence in the arms applicable to such junior branch.' Here again it is argued that there is more bad heraldry, and that the heir male cannot be a younger branch, but must be head of the house, and an elder branch to the senior heir of line. The Lord Ordinary does not think this established by any authorities on heraldry, so far as he can judge of the matter. But if the enactment could be shown to be inconsistent with the usage of heraldry, still it has been so declared by the highest authority as the law affecting the rights of the parties in this particular case. The respondent would not have obtained the Act of Parliament without the declaration, that lie is to he considered the younger branch of the families, and he would not have been permitted to take the name and arms of Cunyngham; of Lambrughton, otherwise than with the difference or mark of cadence, in the arms applicable to such junior branch. Effect, therefore, must be given to the Act of Parliament, and no heraldic difficulty has been pointed out, which renders it impossible to obey that Act in the case in hand.

IV.  Such being the rights of the advocator under the statute, it is said that neither Sir John Cunyngham nor Sir James Dick had supporters, and that as it is only to the arms and supporters of these ancestors that the heir of line is declared to have succession, he cannot claim them. But it is plain, that whether either of the two baronets named actually used supporters or not (and certainly there are no supporters in the emblazonment of the arms of Sir James Dick in 1687), the right of the heir of line is not made dependent on the use of supporters, or of arms, by any of his individual ancestors. It is, on the contrary acknowledged and declared to be in him, as licit. of line of the families; and the Act declares that he has right to the full arms and supporters of these families. That there are supporters is not disputed; for the respondent himself claims them, and they have been awarded by the Lyondepute to hint, wrongfully, as the Lord Ordinary thinks, because the statute has given them to the advocator. The interlocutor of the Lyon-depute gives to the respondent the supporters of Dick of Prestonfield, and that specially on the finding, that as head and chief in the male line of Cunyngham, of Lambrughton, and Dick of Prestonfield, he would have been entitled to the full arms but for the Act of Parliament. That Act of Parliament, however, took away any right that he had, or might have claimed, to supporters, and gave them to the heir of line of both families, just as much as it rendered it imperative on the respondent, in
wearing the arms of Cunyngham of Lambrughton, to do so with the difference or mark of   of a. younger branch. The interlocutor, with regard to the
supporters,  appears to be  in the face of the Act of Parliament, and gives to the respondent, those  supporters which that Act gives to the advocator.

[1146]
Nor can the Lord Ordinary fail to observe, that if supporters belong to the head of the house, which h(,, understands to be admitted, it seems very strange that the same party to whom these supporters are awarded, as such head, should, at the same time, wear a difference, denoting that he is a junior branch of the very house of which he is head. Yet such is the heraldic anomaly which the Lyondepute appears to have created.

It humbly appears to the Lord Ordinary, that the Lyon-depute has gone equally far wrong  as to the mark of difference which lie has assigned to the arms
of the respondent. The full arms have been awarded, with this condition, "for  difference  on a canton the badge of Nova Scotia." Now, without any great knowledge of heraldry, it would appear strange, that the badge of an honourable order, which, as a baronet of that order, the respondent is entitled to wear, should be the difference or mark of cadence applicable to a junior branch of a family. But what is still more remarkable, the emblazonment of the arms of Sir James Dick of Prestonfield in 1687 (to whom, among others, the advocator is served heir of line, and whose arms he is entitled to bear in full, in terms of the statute), While undoubtedly it bears no supporters-in consequence of which the respondent maintains that the advocator is excluded from claiming supporters-bears on a canton the badge of' Nova Scotia, the. very thing awarded to till* respondent as a difference. The result is, that the Lyon-depute, in order to make a difference between the two arms, has, in the first place, ,;elected the identical badge in a canton to be the same in both, and has thus identified the two things, as to which he purposes to make a difference. In the second place, he has taken the badge of a baronetcy, which is an honourable distinction,  or augmentation of the arms, to be the mark of cadence of a junior branch, for which no reason or authority can be shown. The badge of Nova Scotia would mark that the wearer of the arms was a Nova Scotia baronet. It would do go in the case of the respondent, as it did in the case of Sir James Dick, the first baronet of Prestonfield. But it never could mark either the one, or the other as a junior branch; and it is not said that Sir James the first baronet, wall a junior branch of either house. To the Lord  Ordinary, therefore, this award of the Lyon-depute appears to be an evasion of, and not a compliance with the Act of Parliament.

The heraldry enacted by the legislature, applicable to this case, in short, so far as the Lord Ordinary can judge, is more consistent and intelligible than that of the Lyon-depute. There could, at all events, have been no difficulty in carrying the Act of Parliament into effect, and denoting the junior branch by a crescent or mullet, according to what is explained to he the usual form. But as the Act can practically be carried into execution, it is satisfactory to decide the case upon the statute, which is binding both in this Court and in the Lyon Court. The Lord Ordinary begs it to be explicitly understood, that his judgment proceeds on this view of the statute; and although he. has ventured to express his impressions on the argument which has been adduced on the argument which has been adduced on the heraldic branch of the subject,  he does so without any confidence, and without resting the grounds of his opinion upon these impressions.
 

[1144]
Sir R. H. Dick Cunyngham reclaimed, and pleaded;

 1. The Court of Session not being the proper Court for questions as to [1145] the law of arms and practice of heraldry, will not interfere with the Lord-Lyon's discharge of his duty, of matriculating arms, whether exercised in [1146] virtue of his general powers, or under the authority of a special Act of Parliament. 2. The Act of Parliament founded on was not intended to give, and did not give to the senior heir of line, any thing of heraldic or family honours that were not legally his before. The narrative or preamble of the clause founded on is not of the nature of an enactment. The Lord-Lyon has assigned to the respondent the arms, as required by the enacting part of the Act.(1)

(1) Ersk. 1. 1, 49.

3. By the custom of the heralds of Scotland, the respondent, as the [1147] only surviving son and heir-male of Sir Alexander Dick of Prestonfield is entitled to use and bear the arms and supporters of that family,   in  preference, and to the exclusion of the heirs of line, being females.(1)

The advocator pleaded;—
The advocation was competent before the Court of Session, as the supreme jurisdiction  possessing power to review a decision of the Court of Arms, as well as other inferior judicatories; and above all, as bound to enforce the terms of an Act of Parliament.(2) 2. Under the terms of the Act of .Parliament, section 21, it was incompetent for the Lyon COurt to. grant to any other than the senior heir of line the arms of the families, without mark of cadency. 3. The senior heir of line is the party entitled by the rules and practice of heraldry to bear the plain arms of the family.(3) 4. It is not consistent with the usages of heraldry to grant supporters to a party who bears in his arms a mark of cadence. 5. The law of heraldry does not recognize "the badge of Nova Scotia in a canton" as a mark of cadence, that being a mark of distinction; and it was an evasion of the Act of Parliament to make no other difference.

(1) Mackenzie, ii., p. 520, 619; Guillim, sect. 6, p. 456; Nisbet, ii. 20; Cruise on Dignities, c. 5, sect. 86; Dugdale's Ancient Usage of Arms, p. 16; Nisbet on Exterior Ornaments, p. 63; Cases of the Marquis of Queensberry, Anstruther of that Ilk, M'Leod of M'Leod, Munro of Foulis, M'Pherson of Cluny; all in Lyon Records, passim.

(2) Ersk. 1., 4, 32, 33; Lyon Court v. Murray, 1778, M. 7656; Barons v. Lord Lyon, 1703, Br. Sup., 36; Macdonell v. Macdonald, Jan. 20, 1826, 4 S. & D., 371 ; Dundas v. Dundas, 1762, Br. Sup., 5, 493; Report of Parliamentary Commissioners, March 3, 1823.

(3) Dugdale, p. 76; Nisbet, Her., ii., p. 33; Sir David Lindsay's Heraldry; Cases of the Earl of Buchan. 1604, Countess of Sutherland, Baroness Sampill, Baroness Grey of Ruthyn, Napier of Merchiston, Mowbray of Barnbougal, L'Amy of DUnkenny Farquharson of Invereauld, Rattray of Craighall, GibsonCraig of Ricearton, Maitland Heriot of Ramornie Lyon Records, passim.

LORD PRESIDENT—This case raises a question of very unusual occurence in this Court, and has been argued most ably by the counsel on both sides.  I must confess that I am not particularly versant with the rules and usages of heraldry, nor have I any great skill in heraldic terms. But such knowledge does not seem to me to be at all necessary to the right determination of this case; for, upon the statute I have no difficulty in making up my mind that the interlocutor of the Lord Ordinary should be adhered to. The Lord Ordinary, although he rests his judgment on the Act of Parliament, has intimated all opinion upon the abstract question of heraldic right, and inclines to the view maintained by the heir of line. I am not prepared to go into that abstract question, and on it I give no opinion. I will not go a step beyond the statute.

The first question is the competency of the advocation. There is no special plea before us that raises this question; but even if there were, when I consider the statements contained in Mr Cuninghame's petition, and the interlocutor of the Lord Lyon, I am of opinion that Mr Cuninghame did instruct rights, imaginary [1148] they may be, and trival in the opinion of many, but well known to and recognised by the law, with which the interlocutor of the Lord Lyon interfered. On such an invasion of rights, I would have no difficulty in holding an appeal to this Court competent, even were the case of Glengarry not on the books. That case fully established the competency of this Court to review the judgments of the Lord Lyon; and we have here an additional ground to go upon, for we are called on to see that the provisions of an Act of Parliament have been complied with.

From the first perusal of the statute, I felt no doubt as to the question raised touching the advocator's right to the supporters- [Reads section 21]. I cannot adopt the interpretation that the expression, "his said ancestors," refers solely to the two baronets who are mentioned nominatim, and who, so far as appears, did riot use supporters, to the exclusion of the intermediate ancestors, to whom also the advocator has been served heir of line. These two persons are named as the leading ancestors of the two families of which Mr Smith Cuninghame is the heir of line. This proviso seems to me to put his right to these arms and supporters beyond the reach of cavil or doubt. No doubt, when the preliminaries of the Act were formerly before us, this clause did not appear in the draft, and no such question as the present was brought under our consideration ; but the question arose when the advocator appeared in Parliament to oppose the bill. When the bill was in the House of Lords, the insertion of this clause was agreed to; and the advocator having thereupon withdrawn his opposition, the Act, as it now stands, received the Royal Assent. There was nothing illegal in the advocator's opposition ; and every thing done in Parliament must be held to be solemniter actum. We must assume that Lord Shaftesbury and the legal officers of the House of Lords were perfectly cognisant of the whole matter and had maturely considered this enactment before it was suffered to pass. The Arms part of this clause, no doubt, has the appearance of being a preamble merely; but the whole section must be read is connected together, and forming one enactment. Then we find that the first part of the section contains a statement of fact, which, with what follows, makes the whole enactment clear and explicit. It was argued by the respondent that Parliament had no power to confer heraldic honours; but we cannot for a moment assume that they have done anything illegal or ultra vires. In this state of matters Parliament having declared the right of the heir of line to the indivisible honours of the family, and inter alia to the supporters, it follows that the advocator is clearly entitled to the supporters under the statute ; and this right he is to have entire-unencroached upon by the respondent.

The enactment of the statute is express, "that the said Sir R. K. Dick, being a younger branch of the said families, in taking the name of Cunyngham, and  arm of Cunyngham  of Lambrughton, shall do so with the difference and mark of cadence in such cases applicable to a younger branch." This is a provision which must be strictly enforced; and the question is, Has the Lord-Lyon, An introducing into the arms, for a difference, "on a canton, the badge of Nova Scotia," sufficiently complied with the terms of the statute ? Without going into, the heraldic dispute we have here a very important question on the statute. I am not satisfied that he has done so, for, without any deep knowledge of heraldry I can see that what has been assigned as the difference, is not a mark of cadence [1149] at all. From the emblazonment of the coats-of-arms of the chiefs of these families, produced in process, I find that they bear the badge of Nova Scotia on a  canton, as an honourable distinction, in the very same place where the Lord- Lyon has put it as a mark of cadence, denoting a younger branch. What difference is to be introduced, so as to comply with the statute, it is not for me but for the Lord-Lyon to determine ; but this is clear, that the badge of Nova Scotia is not a mark of cadence. I hold that the difference assigned by the Lord-Lyon is not a compliance with the Act of Parliament, and I am therefore for adhering.

LORD MACKENZIE.— I  am of the same opinion. On a review of the interlocuter of the Lord-Lyon, I cannot hold that he has implemented the Act of Par liament.

The decision of the Lord Ordinary consists of two parts: The first alters the  interlocutor of the Lord-Lyon, and "remits to the Lyon Court, with instructions to award to the advocator, in the matriculation of his arms, the arms. and supporters of the families of Cunyngham of Lambrughton and Dick of Preston. field, as the senior heir of these houses." It is not disputed that the advocator is the senior heir of line of these houses, but it is contended that the respondent, as the heir-male, is the head of the house, and entitled to use the family arms and supporters. I give no opinion on the merits of that question at common law, but, at any rate, under the Act of Parliament, the decision of the Lord Ordinary, as between the present parties, is perfectly right. We must adhere to the Act, and it expressly gives the supporters of the family to the advocator. It seems to be argued by the respondent, that because neither of the remote ancestors, named in the Act of Parliament, used supporters, therefore no right to supporters was conceded to the advocator. But I do not limit to Sir John Cunyngham and Sir James Dick the reference in the Act to '"his said ancestors." 1 think it embraces all the intermediate ancestors of the advocator, one of whom, Sir Alexander Dick, obtained a grant of supporters, produced and founded on by the respondent himself. We must interpret the clause of the Act m referring to this Sir Alexander, just as much as to any of the other ancestors to whom the advocator is served is heir of line. I do not know whether these original ancestors of the family had supporters or not. It is not proved by either of the parties that they had ; but the advocator founds on the grant in the patent to Sir Alexander Dick in 1771. He argues, that this patent was not a grant de novo, but merely a regrant of those originally belonging to the family. But whether the original use was founded on right or sufferance, and in whatever way the present question would have been settled by the rules of common law-whether in  favour of the heir of line or the heir-male—there can be no doubt that now die matter is fairly settled under the Act of Parliament. The advocator has right to the indivisible honours, and specially has right to the supporters ; and this right is reserved to him, entire.

On the second point, I am equally clear that the Lord Ordinary is right. The statute-and it is not merely a statute, but a contract between the parties—expressly enacts, that the difference and mark of cadence introduced into the arms shall be applicable to a younger branch. It appears to me that the badge of Nova Scotia is no mark of cadence. It is a mark of honour. Its introduction into the coat of arms merely indicates that the bearer is a baronet of Nova Scotia. It does not at all show that the bearer is a cadet, and not the head of [1150] the house. I agree with the advocator's counsel, in the impropriety of introducing any thing that contains the royal arms as a mark of cadence. But what chiefly moves me, is, that this is truly no difference at all. The badge of Nova Scotia may be borne by a baronet, whether he is the head of the house or a cadet ; and the instances produced by the advocator were quite irresistible, when he showed that the chiefs of this very family, who happened to be baronets, bore this badge on a canton, in the place where it is assigned by the Lord Lyon difference. They so bore it, because it was a mark not of cadence, but distinction.

LORD FULLERTON. —There is here raised a question which would have been much better submitted to another tribunal. It is one involving no patrimonial interest, and merely relating to heraldic honours. As these are presumed to be the creations of the Crown, I should have thought any competition regarding them might have been left to the determination of an official specially apppointed for that purpose, rather than made the subject of discussion before a court of law.

But I am afraid we cannot avoid the inquiry on that ground. It is fixed by decision, that the raising of such questions before us is competent ; and we must determine it as we best can, guided by the lights which have been afforded ion' by the elaborate arguments we have heard.

I must say, however, that it is rather a relief to consider, that the question here is limited to the construction of a statute. For if we had been obliged to enter into the wider field, embracing the descent of heraldic honours at common law, if such an expression is allowable, I ant by no means prepared to assent to the proposition so broadly laid down by the advocator, that in every cam which the holder of such honours dies, leaving a collateral heir-male, and daughter or daughters, his heirs of line, the honours will go to the daughters an& their descendants, and that the heir-male will take them only under a brisure cc mark of cadency. Speaking with all due diffidence on such a mystery, I must say that the cases put and referred to by the advocator, do not by ally bear out that proposition. He has put the case of a peerage going to a female, the heir of line, or of the descent of a territorial possession on a female, the heir' of flue, and asks whether, in such circumstances the heraldic distinction would not go to the heir of line, though a female, to the exclusion of the heir-male? think it is quite possible, that in such cases the Lyon Court would award armorial distinctions to the heir of line; and the cases of that being done, and acquiesced in by the heir-male.

But to test the general principle so broadly laid down, one must vary the circumstances and suppose that the peerage, or family territorial possession went to the heir-male. Could it be maintained, that in that case the Lyon Court was  bound to award, and did in practice award, the armorial bearing to the heirs female, the heirs of line, and grant them only under a mark of cadency to heir-male, practically the representative of the family? And this is the proposition which, but for the statute, it would be indispensable for the advocator to make out. Certainly, in the matter of the supporters, that is the case.  is no evidence that those supporters were borne by any of the family before Sir Alexander Dick, the father of the respondent, and grandfather of the advocator. They are contained in the patent granted by the Lord Lyon to him, as Dick of [1151] Prestonfield. They have no relation to the arms of Cunyngham, but are attached, to the arms of Dick of Prestonfield. The territorial possession of Prestonfield has gone to the respondent m heir-male; and at this moment the advocator has no connection whatever with that territorial possession. Now whether, in these circumstances, the arms and supporters of Dick of Prestonfield ought to go, not to Dick of Prestonfield, but to one who is not, and does not, pretend to be, Dick of Prestonfield, but only the heir-female and of line of the former Dick of Prestonfield, is a question which I should be, as at present advised, not disposed to decide in favour of the advocator.

But I agree with the Lord Ordinary in thinking that there is enough in the statute to guide our decision. Whatever may be the general effect of a private Act of this kind, as fixing the law in relation to the rights of other parties, it may be safely assumed to fix the law of this case between the advocator and respondent, by the arrangement between whom it was obtained in the terms it now bears.

The recital is, that the senior heir of line of Sir John Cunyngham and Sir James Dick (unquestionably the advocator), " has succession to all their indivi sible rights not carried from him by entail or settlement; and specially has right to bear and use the arms and supporters of his said ancestors." And though the supporters do not seem to have been borne by Sir John Dick, but were given to Sir Alexander, still, being rights belonging to an ancestor, and not expressly carried by entail or settlement from the advocator, they must, according to the law as laid down in that recital, which must be hold as the joint act of both parties, go to the advocator as the senior heir of line; and accordingly, the enacting clause is, "that the said rights and arms are hereby reserved entire to such senior heir of line."

The enactment as to the arms of Cunyngham. is still clearer-" that the said Sir Robert Dick, being a younger branch of the said families, he and his heirs male, in taking the arms of Cunyngham, shall do so with the difference or mark of  cadency in the arms applicable to such junior branch."

Now, the pretended difference given by the Lyon-depute is truly no differslice nor mark of cadency at all. It is the badge of the knighthood of Nova Scotia, borne as an addition to the family arms by any one, oven the chief of the family, who happens to hold that dignity. Accordingly, it appears, from the blazonings now produced, to have been so borne by Sir John Cunyngham, Sir James and Sir Alexander Dick. It seems impossible to view this as a difference or mark of cadency, in the sense contemplated by the statute. Therefore I think that upon this, as well as the matter of the supporters, the interlocutor of the Lord Ordinary is well founded.

LORD  JEFFREY.—  I  concur with your Lordships, and particularly on that point which we must all feel to be a great relief-that we can rest our judgment on the construction of the statute, and need not go into the question which we would have been called upon to decide, had the statute not existed, upon the common law of heraldry. Wec do not adjudicate that question of common law. It certainly is a novel and curious question ; and I confess, that if it had arisen in the abstract form, it would have very much embarrassed me. The respondent said that the plain common-sense view of the matter was in favour of the right of the heir male. If I may be permitted to take a common-sense view, I should say [1152] that there is neither an inflexible rule nor a uniform practice in the matter.  There may be cases in which the heir of line will exclude the heir male, and there may be cases where the converse will be held. In my opinion the common sense rule is, that the chief armorial dignities should follow the more substantial rights and dignities of the family If the heir male succeed to the title and estates, I think it reasonable that he should also succeed to the armorial bearings of the head of the house.' I would think it a very difficult proposition to establish that the heir of line, when denuded of every thing else, was still entitled to retain the barren honours of heraldry. But I give no opinion upon  that point. I think the right to supporters in this case rests upon the Act of  Parliament. And I cannot but hold, with Lord Mackenzie, that the Act passed after a compromise or contract between the parties, by which the one agreed to withdrawall opposition to the bill then before Parliament, provided the other would recognise his right to the supporters and other insignia of the head of the house.  The respondent, who now objects to the Parliamentary adjustment of these armorial rights, has told us that Parliament usurped the jurisdiction of the Lord-Lyon.   But even if Parliament had no jurisdiction in itself to declare the rights of parties in reference to heraldic honours, was there not a prorogation of that jurisdiction by consent of parties ? Are their months not closed by their own act, in that they  went before Parliament and asked for an adjudication of the matter? Esto  then that the common law of arms would favour the view of the respondent, this statute must stand in his way. But I do not assent to the argument that Parliament cannot grant arms ; that is hardly a correct expression. It may be indecent to suppose that Parliament would go so far out of its way as to make a grant of arms or to make a bishop ; but we cannot enter upon that consideration in giving judgment on an Act which was passed on the consent of parties, first, because of that consent, and, second, because this is a statute of the realm, to which, as a Court, we must give effect. The question, therefore, comes to be, what is the construction of the Act? I think that it amounts to a recognition of the heir of line, not the heir-male, as the head of both families, and of his right as holding that position to all their indivisible heritable rights, and to the arms, including the supporters-if not absolutely, at all events in a question between the present parties. There is no dispute that the advocator is the heir of  line, and the 21st section seems to have been most anxiously framed with a view to reserve to him entire the right to bear the arms and supporters of his "said ancestors." I cannot adopt the view that the terms, "his said ancestors'' refer exclusively to the two heads of the respective families who are named as such in the Act of Parliament. It was never meant to exclude intermediate links, not mentioned but to whom the advocator stood in precisely the same position, as heir of line served and retoured. It is said that these older ancestors never used supporters. That is not proved, but left in doubt. At any events, it is proved that Sir Alexander Dick had a right to supporters, and  I hold that the Act covers the right to these supporters. At all events, it is clear from the enacting clause, that the respondent, who is therein declared to be a younger branch of the Lambrughton and Prestonfield families, has no right to use and bear these supporters.  He is subordinated to his chief; and that being the case,  I have no doubt that Mr Cuninghame has the right to supporters.

Then, is to the sufficiency or the mark of cadence I agree, with the Lord Ordi[1153]nary in rejecting it as a perversion  of the terms of the Act, I am not moved by the argument, that this is a case in which the Court cannot interfere.  The Court is bound to see that the provisions of the Act are not evaded; and if the Lord Lyon has invaded the rights of the advocator under the statute, the Court are entitled to see that justice is done him. Under the statute his rights have been reserved to him entire, and he has, therefore, a right to be satisfied that the mark of cadence assigned by the Lord Lyon is truly such. The Act says c expressly, that the arms of the respondent shall be taken with the difference or mark of cadence applicable to a younger branch. Even setting aside the Act of Parliament, there is here such a manifest infringement of the ordinary rules of heraldry, as would entitle us to take up the case. 1 am not sufficiently skilled in these rules, and it is not my province to say what will be a proper mark of cadence; but it must be such as will show to all, the inferiority, or cadetcy, of the respondent's branch of the family. The badge of the baronets of Nova Scotia, in whatever part of the shield it may be placed, cannot possibly be understood m a difference in the heraldic sense. It is a mark of dignity-an honourable addition. While the baronetcy remained with the chiefs of these families, we find that this badge formed the compliment of their arms. How, then, can it mark inferiority ? I think these grounds are quite clear of any invasion of the Lyon's province of determining what is a proper difference. I cannot lay any weight on the single case cited by the respondent, where a crozier was incorporated in the shield as a difference. If the badge of Nova Scotia can be borne as such, so might a ducal crown. The respondent is bound to assume a mark of minority, inferiority, or cadency, clearly indicating that there is a higher branch of the family than himself, and which can be read as such by all persons conversant in the most recent form of this hieroglyphic type. Most assuredly that cannot be understood as a mark of inferiority, which was borne in the same corner of their shields by no less than four heads of this family as a badge of honour.

For these reasons, I hold that the Lord Ordinary has found well on all the points.

THE COURT adhered.

ALEXANDER SMITH W.S. --- SCOTT  & GILLESPIE,  W.S.----Agents.

Petition MacRae, 22nd April 1909.  Lyon Court, unreported.

The Petitioner in this case, Sir Colin G. Macrae, stated that he was the eldest male representative of the deceased Colin Macrae of Inverinate, that he 'and his ancestors as Chiefs of the Clan Macrae have used certain armorial ensigns from a period long anterior to the passing of the Act of Parliament, 1672, cap. 47, but that the same have never been recorded in the Public Register of All Arms and Bearings in Scotland in terms of the said statute.' He therefore prayed that the Lyon would grant warrant to the Lyon Clerk to matriculate 'the ensigns armorial above indicated in name of the Petitioner as Chief of the Clan Macrae.'

John MacRae-Gilstrap, major of the 3rd Battalion of the Black Watch, who had previously lodged a caveat, appeared and lodged answers, stating that he was the second son of the late Duncan MacRae, who was head of the family of MacRae of Conchra. He denied that the Petitioner, or any of his ancestors whom he represented, was Chief of the Clan Macrae, or used arms as such ; and he denied that the petition was competent in so far as it asked Lyon to recognize the Petitioner as Chief of the Clan Macrae.

The Petitioner objected that the Respondent had no locus standi; that he represented no one but himself ; that his elder brother, who was head of his family, was aware of the Petition, and was making no objection; that the Respondent claimed and could claim nothing that the Petitioner was claiming (Macdonell v. Macdonald, 20th January, 1826, 4 Shaw, 371). The Respondent argued that he had an interest to object to any person being put over him as his Chief. The Petitioner explained that the Court was not asked to come to any judgement that the Petitioner was Chief of the Clan.

The Court sustained the Respondent's locus 'in so far as his right to be heard on the question of the existence of the clan Macrae and its chiefship.'

On the merits the Petitioner produced a declaration of his chiefship signed by a number of persons of the surname of Macrae, which he stated represented the vast majority of the Clan. He also produced other evidence of his accepted position, and to prove that in the past Macrae of Inverinate was the chief or head (Ceann) of the clan (Fine or Cinnidh), being called in Gaelic Ceann Fine and Ceann Cinnidh, both titles meaning that he was chief of a clan ; and, separatim, that he was head of the chief family of the name Macrae. To prove the nature of the arms of Macrae, and their use before 1672, he pointed to the Porteous manuscript in Lyon Office, in which they occur, and argued that the arms of Macrae, without any qualification) were necessarily the arms of the Chief of the name.

The Respondent led evidence to show that the opinion of the Petitioner's chiefship was not unanimous; and that Clan Macrae in the past was notoriously a clan which had no chief other than Seaforth ; and argued that Clan Macrae was a clan only in a popular sense.

Lyon pronounced judgement as follows: 'The Lord Lyon King of Arms having taken the proof and beard Counsel for the parties thereon, Finds that the Petitioner has failed to prove user of arms or supporters previous to the passing of the Act,' concerning the privileges of the Office of Lyon King-at-Arms, '1672, cap. 217, Refuses the prayer of the Petition, and Decerns.' His Lordship's Note accompanying the judgement is as follows:

Note. This is a petition for a matriculation of arms by Sir Colin Macrae, representing the old family of Inverinate. The term 'matriculation of arms' is used in the ordinary practice of the Lyon Court to denote (a) the registration, by a cadet, of a coat of arms which has been already recorded by an ancestor in his own name with a suitable difference, if necessary, or (b) the registration in the present Lyon Register of a coat which has been used by the family of the applicant previous to 1672, but which has not been recorded in terms of the Act of that year, which required all persons who claimed arms to give the same in to the Lyon, in order that they might be recorded in his books. The only other way of recording arms is by applying for a new grant or patent, which the Lyon is bound to give to all 'virtuous and well deserving persons.' As the Petitioner does not aver that he is a cadet, but, on the contrary, that he represents the senior line of the Macrae family or clan, it is evident that he can only ask for a matriculation on the ground of user of arms before 1672.

The question of arms is the first point which I must take into consideration, because under the terms of the Petition it is not a matter of pedigree which is primarily involved, still less is it one of the Chiefship of a clan with which this Court is concerned only so far as it might be the warrant for a matriculation of supporters. It is a singular fact that this question of arms, the most important, so far as I am concerned, should have been relegated to a very minor place both in the proof itself and in the speeches of Counsel. But it forms the only reason why parties can appear before me at all, and it is, therefore, obvious that it must be considered first. The Petitioner, according to the rules of this Court, must prove user of arms before 1672 by his direct ancestors. In support of his claim he produces an entry of arms in an armorial MS. in the Lyon Office, originally compiled by Porteous, who was Snowdoun Herald in 1661. The entry is for Macreach (or perhaps Macreath), Argent, a fess between three mullets in chief and a lion rampant in base gules. It is not assigned to any particular individual, but, like several other entries in the same MS., has a more general name attached. I may take it, however, that Porteous was satisfied that in his day these arms were borne by some one of the name of Macrae (I do not attach any weight to the contention for the Respondent that Macreach meant anything else than Macrae), though it is a singular circumstance that it is only in this armorial MS. that any mention of such arms can be found before 1672. The coat, of which the blazon is given above, 15 somewhat suggestive. It is not in the least like any arms borne by other West Highland clans. But in the course of the proof it was shown, and I have no reason to doubt the accuracy of the assertion, that the Macracs came originally from Clunes, a place a little to the west of Inverness. Now this is just the part of the country where .armorial bearings having stars or mullets as their chief charge might be expected to appear. The great house of Moray bore azure three stars argent, while that of Innes reversed the tinctures and bore argent three stars azure. The Dallas family, too, who were inhabitants of the neighbouring district, bore stars in some form or other on their shield, and the coat assigned by Lyon to General Sir Thomas Dallas, K.C.B., in 1815 bears a close resemblance to that of Macrae as given by Porteous, argent a fess between five mullets of six points, three in chief and two in base gules. This is exactly the Macrae coat, save that a lion rampant has been substituted for the mullets in base. The presumption, therefore, is that some person of the name of Macrae bore that coat before the family left Clunes, and this shows (as indeed is admitted by both parties) that the date of 1200 given for the migration of the Macraes from Clunes to Kintail by the Rev. John MacCra must be much too early, as armorial bearings were at that time entirely unknown in the Highlands. By whom these arms were originally borne has not come out in the evidence; the first person of the name of Macrae who assumed them was probably a vassal of some of the great families who bore somewhat similar charges on their arms. It was quite a common practice for the arms of verse,ls to be founded on those of their superiors, even though there was no blood connection whatever.

Accepting Porteous's blazon of the arms as that of a coat to which some Macrae had a right or had assumed, I may point out that before the Petitioner can prove his right to it, he must show that it belonged to a person of whom he is now the senior male representative. He cannot come here and say : 'This is a Macrae coat or the Macrae coat, and in virtue of my being the chief of the clan, I claim to have recorded in my name.' There is no such thing, strictly speaking, in Scottish Heraldry as a 'family' coat of arms, that is, a coat which may be used indiscriminately by the members of one family or clan. The head of a house bears a certain coat of arms  but all younger sons can only bear these arms of their ancestor with a certain difference, such differences being assigned by the Lyon. And further differences must ,he assigned to younger sons of younger sons in all generations. This indicates how jealous the statutory armorial law of Scotland has always been of any infringement the rights of the main line of the family. Such being the case, I cannot find that the Petitioner has proved, or even attempted to prove, that any of his ancestors, representatives of the house of Inverinate, have ever borne the arms given by Porteous, or indeed any other, except in comparatively recent times. Had they done so it is almost inconceivable that some relic denoting such use should not have survived to present. No seal, no tombstone, no article of domestic use, is known to exist with these arms upon them. The only things of the kind that have been produce belonging to the Inverinate family are two seals, the one bearing the arms as given by Porteous with the crest of a cubit arm holding a scimitar and the motto Fortitudine, the other has some remarkable features,-the arms on the shield are the same, but the fess is charged with a thistle slipped the crest is a unicorn trippant : there are two mottos. that above the crest being Libertas et Honor,' and that below the shield 'Trust in God and fear nought.' But the most important feature of difference in the second achievement is the presence of supporters in the shape of two Highlanders with drawn swords in their hands. But these seals are evidently modern ; from the style of their execution I should say that they date from the early part of last century. They show, in the first place, that the Macraes of Inverinate were not certain at that period what exactly their arms were. It may also be presumed that the seal without the supporters is probably the older of the two ; the other one was evidently assumed as that of chief of the clan. Unfortunately, however, for the sake of heraldic accuracy the one without the supporters would connote the older family of the two, because the fess is uncharged. In the seal with supporters it is charged with a thistle, which at once suggests, from a heraldic point of view, that the arms are those of a junior branch) which is quite inconsistent with the presence of supporters. It is significant too, that this seal is almost certainly of a later date than 1815, which was the date of the death of the last Earl of Seaforth. It is not stated who executed either of the seals in process : I should have thought them the work of Alexander Deuchar but for a reason to be mentioned presently ; he was a well-known seal engraver who flourished in Edinburgh in the early part of last century. He did not hesitate to please his clients, and he readily invented arms for any one who came to him, and as he had considerable knowledge of heraldry, he generally composed them on better lines than is usually done by the ordinary seal engraver. He made large collections, which have been much scattered since his death, but some of them are in the Lyon office, and in a volume which was compiled 1807-12, there are several so-called Macrae coats given.  The arms of John Macrae of Inverinate appear exactly as given on the first seal mentioned above, with the exception that there are only two mullets instead of three. This version is what Mr. Horatio Macrae gives as the 'Macrae Arms' in his letter to Major Macrae-Gilstrap of 19th January, 1886 (No. 39 of Process). Exactly the same arms are given in this collection for a George MICrie, but in his case the crest is Dot a cubit arm, but an arm embowed. Other Macraes appear in Deuchar's collection ; James M'Cree hits a similar coat to Inverinate, but has the fess blue, and he is the only one of the name to whom Deuchar gives three mullets in chief. Andrew Macrae has also the fess blue, but has only two stars in chief. Archibald M'Cray has two stars in chief, but has the fess gules, and charged with another star argent.

It does not seem necessary to go further into the question of the coat of arms itself I regret I cannot find in the proceedings evidence to show that any arms were born, by persons whom the Petitioner has proved to be ancestors of his. But besides the arms there is the question of supporters ; under the terms of the Petition, of course, if the Petitioner is not found entitled to arms, he cannot be entitled to supporters, which are only what Nisbet calls 'exterior additaments' to a coat of arms. The prayer of the Petition is that I should 'matriculate ' in the Lyon Register in name of the Petitioner as Chief of the Clan Macrae the ensigns armorial indicated in the Petition. As a matter of fact, however, there are no specific arms mentioned there ; all that is said is that certain armorial bearings were borne by the Petitioner and his ancestors long anterior to 1672, the passing of the Act regulating the registration of arms. No attempt has been made in the whole course of this case to show that any of the petitioner's ancestors ever bore supporters, and supposing he had been successful in proving his hereditary right to arms, and in consequence to have these ' matriculated,' it would have been necessary for him, supposing he had established the fact that he was Chief of the Clan Macrae, to Petition not for a mere matriculation of supporters, because something which is not at present on record, and the existence of which previous to 1672 is riot proved, cannot be made the subject of matriculation, but for a new grant of supporters.

Under the terms of the present Petition, it does not appear to me to be necessary to go into the further points in this case which have been raised during its discussion, but as the Petitioner would be quite entitled to present a new Petition praying for a grant of arms and supporters as the Chief of the Clan Macrae, it may he convenient to allude to the question of supporters in relation to that of the Chiefship. It is an accepted fact in Scottish armorial law that Chiefs of Highland Clans are entitled to add supporters to their arms. The other classes of persons who are in right of such adjuncts are (a) Peers, and (h) lawful heirs male of the bodies of Minor Barons who held their lands from the King under a Barony title previous to 1587, when they sat in Parliament as Barons-after that date they were relieved from attendance and a system of representation established. But as Mr. Tait, the then Lyon Depute, remarked to a Commission in 1821, 'persons having right on this ground will almost always have it established by ancient usage and the want of usage is a strong presumption against it.' Cases, however, have occurred within recent years in which supporters have been granted to such representatives. As to Highland Chiefs, Sir George Mackenzie in his Treatise on Heraldry remarks, 'I crave liberty to assert that all our chiefs of families and old Barons may use supporters,' thus including in the privilege not only Chiefs of Clans, but the heads of any considerable families, and he goes on to quote specific instances. such as the Haliburtons, Fotheringhams, Irvines, etc. But Sir George seems to found their right more on ancient custom than anything else ; 'these Chiefs have prescribed a right to use supporters and that such a right may be prescribed I have proved formerly, and what warrant is there for most of our rules in Heraldry but in aged custom ?' Mr. Tait says in the above mentioned report regarding the right of Chiefs of Clans to supporters, that they have generally such a right either as Barons (great or small) or by ancient usage. c When any new claim is set up on such a ground, it may be viewed with suspicion . . . it is very difficult to conceive a case in which a new claim of that kind could be admitted.' Now in this case there is not an attempt to prove any ancient user of supporters. All that need now he asked would be a new grant of such, but to enable me to make this, I should require clearer proof of the existence of a chiefship than has been produced. There is no doubt a certain amount of popular belief in the district that the representative of the Inverinate branch is the Chief of the Clan Macrae) but there is a great want of definite evidence to show what this belief was founded on. Professor Mackinnon was examined as to a Gaelic Lament on the death of Farquhar Ban of Inverinate, who is said to be there described as 'Chief.' The words used in the original were Ceann Fine. It is apparently the only known instance of Fine being employed to denote a Chief, it being generally used as an expression for a Clan. There was much discussion as to difference in meaning between Ceann Cinnidh, Ceann Fine, and Ceann Tighe, but it is not necessary to go into them here. Had the Petitioner instead of coming to the Lyon Court gone to the Court of Session and asked for a Declarator that he was the Chief of the Clan Macrae, all this would have been much more to the point. But as he only asks for a matriculation of arms on the ground that his ancestors used them before 1672, and as I have found that he has not proved this, it does not appear to me that it is necessary for me to go into the question of Chiefship, in detail.

Royal College of Surgeons of Edinburgh v. the Royal College Physicians of Edinburgh 
(1911 S.C. 1054)

Background

In 1901, Lord Balfour of Burleigh, secretary for Scotland, decided that on the occasion of the presentation of address to Edward VII, precedence would be given to the Royal College of Physicians of Edinburgh over the Royal College of Surgeons of Edinburgh, and that this decision would be acted on till disturbed by a higher authority.

In Feburary 1911 the RCP presented through the Secretary a petition to the King asking for precedence over the RCS. Almost simultaneously, the RCS presented a petition in the Court of Lyon King of Arms asking him to "find, decern and declare that the petitioners are entitled in all time coming to precedency" over the RCP "or to grant unto the petitioners such precedency." After some correspondence, the Secretary for Scotland advised Lyon King to decline jurisdiction, which he did by an interlocutor of March 9, 1911. The petitioners (the RCS) appealed, and the case was called before the First Division of the Court of Session on march 14; the court allowed respondents (the RCP) to amend their answers by adding a statement to the effect that Lyon has no jurisdiction to deal with the question raised in the petition. On April 12, Lyon issued an interlocutor, finding that "he has jurisdiction so far as concerns a claim to a right of precedence" (and appending a note reproduced in full in the source). The RCP appealed, and the case was heard before the First Division of the Court of Session on May 18.

The source summarizes the arguments for the appellants (RCP): that in questions of precedence there was no matter of legal right involved which could be submitted for the determination of a Court of law; and in any event the Lyon King has no jurisdiction to determine such a question. The respondents (RCS) replied that questions of precedence were questions of legal right; and that Lyon had jurisdiction to deal with them.

Advising took place on June 20, 1911, I quote in full the statements by the Lords.


[1059]
[...] At advising on 20th June 1911,—

Lord President.—This case originated by a petition presented in the Court of the Lord Lyon King of Arms by the Royal College of Surgeons, in which they ask for a decree from the Lord Lyon decerning and declaring that the petitioners are entitled in all time coming, on all public or ceremonial occasions, to precedency over the Royal College of Physicians.

The case was before your Lordships before, and parties were allowed to amend the pleadings that they had made; and, accordingly, in the amended pleadings and the answers for the Royal College of Physicians, they plead that the Lord Lyon King of Arms has no jurisdiction to deal with the question raised in the petition. The Lyon King of Arms has pronounced an interlocutor that he has jurisdiction, and continuing the case for further procedure, and it is against that interlocutor that this appeal is taken before your Lordships.

[1060]
Now, your Lordships will have already noticed that this petition is presented as a petition to the Lyon King of Arms in his capacity as a Judge in one of the inferior judicatories of Scotland. From that inferior judicatory an appeal lies to your Lordships' Courts, and your Lordships have to determine upon the merits such things as come from that Court by appeal. And I think it is a corollary of that that your Lordships would enforce any decree, which was pronounced, by the usual methods by which the Court enforces its decrees.

Now, having said that, the next observation I make is this, that there is no trace in the statutes which deal with the office of the Lyon of any jurisdiction being given in the matter of precedency. There is no authority for it in any text writer—because the note that was quoted of a very learned editor of "Erskine" is not an authority—and there is admittedly no recorded instance of a decision of such a matter.

I think it is enough to dispose of the case; and I only say further that so far from the terms of the royal warrant of 1905, which is referred to in the note which the Lyon has appended to his interlocutor, substantiating his jurisdiction, as he thinks they do, they seem to me to act in exactly the opposite way. The royal warrant of 1905 established a scale of social precedence in Scotland. It did not, as a matter of fact, deal with the College of Physicians or Surgeons, but that is immaterial. It went on—and this is the point upon which the Lord Lyon based his view—"Our will and pleasure therefore is, that Lord Lyon King of Arms, to whom the cognisance of matters of this nature in Scotland doth properly belong, do see this order observed and kept." That seems to me, upon the face of it, an absolutely ministerial injunction, and nothing more. It might be, I think, a very difficult constitutional question whether it was within the prerogative in 1905 to create a jurisdiction which did not exist before. But I do not think it is at all necessary to go into that. It certainly might acknowledge one that existed before, but upon the terms of it I think it is plainly an injunction to Lyon that lays upon him certain ministerial duties; and that he has a ministerial office in seeing that such precedence as is enjoined by the King in a warrant is observed in any procession or ceremonial "whereof Lyon hath the management," I have no doubt.

Upon these very simple grounds I think that the interlocutor must be recalled, and the petition dismissed.

I really cannot imagine how the question of a supposed precedence between the one body and the other could be a matter which we, sitting as a Court of law as we do in reviewing the judgment of the Lyon, could possibly propose to carry out by interdict, and the sanctions of interdict, imprisonment, and so on. But while I say this, I may also say that if people are not dealing with a question of law, not going, as here, by means of a petition to ask a decree, but going to a person to settle a dispute between them, I could not imagine any more proper person to go to than the Lyon. And if these two bodies chose to agree between themselves that they will abide by his decision, I see no reason why—not sitting in his Court, but simply as a high authority on such questions—he should not decide such a dispute. No more proper person, I think, could be found. But I think there is neither precedent, nor authority, nor principle for making [1061] it a matter of litigation in the Courts of law; and, accordingly, I propose that we should deal with the petition as I have said.

Lord Kinnear.—I am of the same opinion. I think it enough for the decision of this case that the supposed jurisdiction of the Lyon Court in this matter certainly rests upon no Act of Parliament, and upon no such continuous and accepted practice as should enable the Court to presume a legal and constitutional origin. There is no instance before us of the supposed jurisdiction having been exercised, and, as I have said, there is no statutory foundation for it.

I also agree with your Lordship's observation that if bodies of this kind resolve to submit any dispute about the precedence to anybody, the Lyon is a most appropriate, probably the most appropriate, person to whom they could go. But although the Lyon Court is a statutory tribunal with undoubted jurisdiction on other matters, the Lyon's decision upon a submission of that kind would be the decision of an arbiter, and not the decision of one of the Courts of the realm.

Lord Johnston.—It seems not to be contested that the Lyon King of Arms has certain executive functions in relation to precedence. And if so, it does not seem to be unreasonable that he should have jurisdiction to inquire into and determine questions of precedence solely in order to enable him to exercise the functions of his office, and so as in no way to usurp any higher authority in this matter. If he has to deal executively with questions of precedence, it would seem more appropriate that he should determine such ab ante and after hearing claimants, rather than summarily and in course of the execution of his office. Whether he has or has not such limited jurisdiction I do not know, and I would not wish to prejudge. But I think it is clear, first, that so far as this case goes, there has not been at all clearly made out to this Court what are the functions of the Lyon's office which require that he should determine, even ad hoc, questions of precedence; and second, that prima facie at least, there does not seem to be any precedent.

I state the case thus, because the present question must be disposed of without a full examination into the history of the matter, which might adduce information which is not before us at present.

But I have examined the Scots Acts of Parliament, which throw a good deal of light both on the office of Lyon and on the question of precedence, and I am able to say that I find nothing, at any rate, in them, and in the Rolls of Parliament in which they are embedded, as printed in Thomson's Acts, to support the case for the Lyon's jurisdiction.

The Lyon appears at first on Thomson's page in the position of a herald merely. But in the middle of the sixteenth century he had become responsible for the exercise of their duties by messenger-at-arms. In 1567, cap. 80, provision is made for re-formation of the office of arms, in terms evidently pointing to irregularities both in the appointment and in the actings of messengers-at-arms, and, to that end, for definition of the Lyon's duties thereanent. This led to the Act 1587, cap. 30, which, as [1062] far as I can find, first establishes the Lyon Court. The Act reduces the number of messengers, places, or, at least, recognises their appointment as in the hands of the Lyon King, and directs him to hold two Courts in the year to inquire into complaints against them for malversation of office. This Court is made a Court of record. There are several confirmatory Acts—e.g., that of 1669, cap. 95.

Then in 1592, cap. 29, there is found what appears to be the origin of another branch of the Lyon's functions and jurisdiction. He may have had some such powers by prior usage, but this is the first recognition thereof by Parliament, and it has all the appearance of a new departure. I need not dwell on the matter in detail. It is sufficient to say that this Act originates the jurisdiction of the Lyon King in the matter of bearing arms. Duties of an inquisitorial nature are imposed upon him and his subordinates, and power to determine the right to bear arms and "to distinguish and decern them with congruent differences, and thereafter to matriculate them in their books and register." This Act is also confirmed in later Acts, as, for instance, 1672, cap. 47. The Lyon's jurisdiction in this matter was partly quasi-judicial and partly ministerial. But it seems to spring from statutory authority.

But there is another phase in Parliamentary history which brings the Lyon King somewhat nearer to the question of precedence. In the last two centuries of the sitting of the Scots Parliament there is constant evidence in the proceedings in Parliament of questions of precedence. But these are questions of Parliamentary precedence—of precedence in what was termed the "riding"—that is, in the cavalcade which was in use to escort the king or his commissioner from the Palace of Holyrood House to the Parliament House, and of precedence in voting in Parliament, where the votes apparently were taken by calling the roll. I think the first instance of legislation on the subject is found in 1587, cap. 17, where an Act was passed against the disputations occurring about precedency of place and voting in Parliament, which were described as frequently leading to unseemly breaches of the peace on the floor of the House. This led to the Act 1587, cap. 18, which appointed a commission to inquire into and determine the proper order of precedence. In this commission the Lyon King of the day was included, but the president and sine quo non was the Earl Marshal. Subsequent Acts renewed the commission, but nothing seems to have been done until 1606, when King James, after his accession to the throne of England, made a remit to a commission of his Privy Council to the same effect. This resulted in the decree of ranking of 1606, of which I understand copies only are extant, and which contained this curious saving clause, reserving the right of all persons finding themselves prejudiced by the ranking, "to the recourse to the ordinare remede of law be a reduction before the Lords of Council and Session of this present decreet, for recovery of their own due place and rank be production of mair antient and authentic rights, nor has been used in the contrare of this process, and summoning thereto all such persons as they shall think wrongously ranked and placed before them." The sequel of this decree of ranking was, inter alia, the litigation which proceeded in the Court of Session between the Earls of Glencairn and Eglinton, and was still pending as late as 1649.

[1063]
There are other instances of this question of Parliamentary precedence in the disputes between the burghs, which in 1579 and 1581 were referred to the Convention of the Burghs. Yet, notwithstanding a decree of the Convention, there is evidence in this proceedings of Parliament that in 1584 the Earl Marshal had displaced Perth in favor of Dundee by the king's command. Similarly, questions of precedence between high officers of state—as the Lord Register and the Lord Advocate—were frequent in the latter end of the seventeenth century, and in 1685 there is a unique instance of a reference by Parliament to the king to settle the question of precedence between the Earl of Roxburghe and the Earl of Lothian. Again in 1625 there is found a petition by the lesser barons of Scotland against the precedence granted by the royal warrant to baronets of Nova Scotia.

I have stated these details with a view of showing that the matter of precedence was not one in which the Lyon King had any original function of jurisdiction, although he was called in expressly to assist, where commissions to inquire and to determine a ranking were issued. This appears to me to be entirely against the contention of the Lyon King and the respondents. But the considerations I have adduced are, I think, useful also in enabling one to understand the bearing of the terms used in the final paragraph of the recent royal warrant of 1905 regarding precedence in Scotland, which at first sight occasion some difficulty. His Majesty intimates his royal will and pleasure that the Lyon King of Arms do see this order observed and kept, and he does so on the ground that to the Lyon King " the cognisance of matters of this nature in Scotland doth properly belong," This makes it clear that the Lyon King has some functions in the matter, but precisely what I have failed to ascertain, or how his intervention is made effectual. There is, however, a side-light on the point to be found in a copy of "the method and manner of riding the Parliament, with the orders and rules appointed thereanent," of date 1703, which is to be found in certain ancient heraldic and antiquarian tracts, published in 1837 from MSS. in the hands of the Faculty of Advocates by, I think, Mr Maidment. The Lyon King, "to whose charge the order of the riding is committed," is to ride in his vestments with certain attendants. It would rather appear, therefore, that the Lyon King's function is to see that established order of precedence is complied with in state ceremonials. For the exercise of his functions it may therefore conceivably be that he requires to ascertain what is the established order of precedence. For even the table of precedence of 1905 does not cover all question. But that is a very different thing from his judicially establishing such order of precedence on a permanent basis as he is asked to do here. While I do not think that this judgment is based on sufficient inquiry to foreclose the question as I stated it at the outset, I agree with your Lordships that the above considerations require that this appeal be sustained and the petition dismissed, as its prayer is of no limited character, but craves a decerniture that the petitioners are entitled in all time coming to a certain precedency, or otherwise a grant of such precedency. To comply with such prayer is clearly beyond the power of the Lyon King.

[1064]
Lord Mackenzie.—I am of the same opinion. No statute has been referred to which confers such a jurisdiction; no institutional writer says that such a jurisdiction exists; and, as the Lord Lyon states in the note appended to his interlocutor, there is no instance on record of a case in which such a jurisdiction has been exercised. The reason for this is that a right of precedence by itself is not a legal entity which can properly be made matter of a judgment that can be enforced by a Court of law. The King determines by the exercise of the royal prerogative the scale of precedence. The duty of the Lyon King of Arms is ministerial, to see that the order is observed and kept.

The Court pronounced this interlocutor:—"Recall the interlocutor of the Lord Lyon King of Arms, dated 12th April 1911; Find that he has no jurisdiction; Therefore dismiss the petition, and decern."

Stewart Mackenzie v. Fraser-Mackenzie 
1922 S.C. (H.L.) 39

Case decided in the House of Lords, December 12 1921.

COLONEL JAMES ALEXANDER FRANCIS HUMBERTSON STEWART MACKENZIE of Seaforth (afterwards Lord Seaforth of Brahan), Petitioner (Appellant).—Macphail, K.C..—Mackay, K.C.—W. H. Stevenson.

MRS BEATRICE ANNA FRASER-MACKENZIE of Allangrange, and ANOTHER, Respondents.—Stevenson,K.C. Leadbetter, K.C.—Carnegie.

On the death in 1815, without male issue, of Francis, Lord Seaforth, the chief of the Mackenzies his eldest daughter succeeded to his estates. The chieftainship of the Mackenzies passed to the heir-male, a distant cousin, George Falconer Mackenzie of Allangrange. He had succeeded to the estate of Allangrange as heir under a deed of entail which contained a name and arms clause, and in 1817 he applied to the Lord Lyon King of Arms to assign to him his proper arms. He was given a quartered shield, containing the undifferenced Mackenzie arms in 1st and 4th quarters, and the arms of Falconer (his mother's family) in the 2nd and 3rd quarters. He also received as supporters two savages, which had been the supporters of former chiefs of the Mackenzies.
[40]
On the death of his second son in 1907 the male line of the Mackenzies of Allangrange became extinct; and it was not known who had become chief of the clan, or if anyone entitled to claim that position existed. The estate of Allangrange passed under an entail with a name and arms clause to a cousin, a Mrs Fraser. Under the name and arms clause she applied to the Lord Lyon to assign to her proper arms. She was given a quartered shield containing undifferenced Mackenzie arms in the 1st and 4th quarters, the arms of Fraser in the 2nd quarter, and the arms of Falconer in the 3rd quarter, and was also given the savage supporters.

Thereafter the grandson and heir-male of the eldest daughter Francis, Lord Seaforth, brought a petition in the Lyon Court for recall of the arms granted to Mrs Fraser, on the ground that, as they contained the undifferenced Mackenzie arms and also the supporters of the chief, they erroneously indicated that she represented the head of the family; and he averred that, as heir of line of Francis, Lord Seaforth, be was entitled to pursue the action.

Held (1) that, even if the arms in question were the undifferenced arms of the head of the family, yet, as the petitioner was neither the heir-male of the chief of the Mackenzies, nor the heir of line of the Mackenzies of Allangrange, nor the heir of line of the senior branch of the Mackenzies of Seaforth, he had no right to those arms himself, and so was not entitled to challenge the Lyon's grant;
M'Donnell v. M'Donald, (1826) 4 S. 371, approved and followed;
Opinion reserved per Lord Sumner;
(2) that the arms obtained by Allangrange in 1817 were not matriculation of the undifferenced arms of the chief, but were grant to him of distinctive Allangrange arms;
(3) that, in any event, as these arms had been borne by the Mackenzies of Allangrange for more than the, prescriptive period, the were no longer open to challenge; and
(4) that they had been competently granted to Mrs Fraser as the arms of Allangrange in 1908, with the addition of the Fraser quarter.
Held further, that quartering is a recognised method of differencing arms in Scottish Heraldry, and is not confined to differencing the arms of cadets only; and that the arms granted to Allangrange, in 1817, and to Mrs Fraser in 1908, were differenced by their additional quarters from the arms of the head of the family.
Held further that, as there is no exclusive property in the emblem used as supporters, the respondents' supporters were not open to challenge.

Interlocutor of the Second Division dismissing the petition affirmed.

(In the Court of Session 17th July1920—1920 S. C. 764.)

The petitioner appealed to the House of Lords.

The case was heard on 18th, 19th, 21st, and 22nd July 1921.

In the course of the argument, counsel for the respondents stated that they did not propose to challenge the findings of the Courts, below as regarded the effects of forfeiture.

On the other points raised in the case the arguments followed in general the course of the arguments in the Court below; but, in addition, counsel for the appellant, emphasised the two following points:—(1)The grant or matriculation of arms to Lady Hood in 1815 was prior in date to the grant, or matriculation to George Falconer Mackenzie in 1817, and the grant to Lady Hood con[41]tained a destination of her arms (with the exception of the accolée shield of her first husband Sir Samuel Hood) to the heirs-male of her body. The appellant was the heir-male of her body, and accordingly, by virtue of that grant alone, which was now fortified by prescription, he was entitled to the undifferenced Mackenzie arms, and accordingly had a title to sue. (2) Quartering was a sufficient difference in the case of cadets only, no in the case of strangers in blood; and the respondent Mrs Fraser-Mackenzie had failed to prove that she was not a stranger in blood. The passages in Mackenzie [Mackenzie's Science of Heraldry, p. 75, par. 4 (collected Works vol ii. 2 p. 618, par. 4)], Nisbet [Nisbet's Heraldry, (1st ed.) vol. ii. part iii. pp. 1921], and Seton [Seton's Scottish Heraldry, p. 101] founded on in the judgments of the Courts below, mentioned quartering as a difference only in connexion with the differencing of the arms of cadets. Nisbet's criticism [Nisbet's Heraldry, (1st ed.) vol. ii. part iii. pp. 22 and 23] of Mackenzie's very general statement emphasised the view that this form of differencing was confined to the arms of cadets.
[On the general argument the following authorities, which were not cited in the Court of Session, were referred to:-By the appellant: On property in arms, Boutell's Heraldry, (3rd ed. 1864) 136; On differencing, The Herald and Genealogist (1863) vol. i. 385 et seq.; on abandoning quarters, Nisbet's Armouries, (1718) 94; On rights of heirs-male and heirs of line, Fox Davies' Complete Guide to Heraldry, (1909) 427; On supporters, Balfour Paul's Heraldry in relation to Scottish History and Art, (1898) :31. By the respondents: On right to one coat only, Dallaway's Inquiries, (1793) 369: On the arms of an heiress, Ibid. 370 and 372; On differences, Ferne's Blazon of Gentry, (1586) part i. 305.]

At delivering judgment on 12th December 1921,—

LORD DUNEDIN.—The present appeal is against an interlocutor of the Second Division affirming an interlocutor of the Lord Lyon of 21st October 1918, whereby he dismissed a petition at the instance of the appellant craving that a grant of ensigns armorial in favour of the respondent, dated 7th February 1908, should he reduced or set aside, or at least should be altered by a disallowance of the supporters authorised thereby. It may be a matter for regret that the opinion of this House should be asked on such a question. There seems, however, no doubt as to the competency of the appeal. The Court of the Lyon is an inferior Court, and from inferior Courts there lies an appeal to the Court of Session, and final interlocutors of the Court of Session in civil matters are appealable to your Lordships' House.

It will be convenient to set forth as briefly as may be the facts which give rise to the controversy.

The ancient family of Mackenzie of Kintail was advanced to an earldom in the person of Colin, who was created Earl of Seaforth in 1623 with remainder to his heirs-male. The arms of the Seaforths were admittedly described as follows: Azure a deer's head cabossed Or; Crest, a mountain in flames proper; supporters, two savages wreathed about the head and middle with laurel, with clubs erect in their hands and fire issuing [42] out of the top of them, all proper; and for motto "Luceo non uro." The fifth earl was attainted in 1715, and the attainder was never removed. In 1797, Francis, who but for the attainder would have been the ninth earl, was created Baron Seaforth with the remainder to heirs-male of his body. His sons all died sine prole in his lifetime, and on his death barony became extinct. He left an eldest daughter, Mary, on whom he entailed his estates. She was twice married, first to Admiral Hood, by whom she had no issue, and second to James Alexander Stewart. The petitioner is the grandson of James Alexander Stewart, and he has assumed, as did his father, the name of Mackenzie. Francis, Lord Seaforth, in the entail above mentioned, inserted it clause taking the institute and heirs of entail bound to bear the arms of Mackenzie of Seaforth. In obedience to this behest Lady Hood matriculated her arms on 14th August 1815 as follows:—" Bears two shields accolée, that on the dexter azure a Fret argent, on a Chief or three Crescents Sable, over all the Badge of a Baronet of the United Kingdom of Great Britain and Ireland, in Strut the Arms of Mackenzie of Seaforth, his Lady being an heiress, the whole within the Ribbon of the Most Honourable Military Order of the Bath, being the Arms of the late Sir Samuel Hood, Baronet ; and that on the Sinister Azure a deer's head cabossed or, for Mackenzie of Seaforth Crest a Mount in flames proper, Motto above the Crest, 'Data Fat Secutus.' On it compartment on which is this motto 'Fide parta fide aucta' are placed for supporters on the dexter side a greyhound proper collared Gules and pendant therefrom a Badge or Charged with a Caberfiedz, and on the Sinister a Savage wreathed about the head and middle with laurel holding in exterior hand a batton erect on his shoulder burning at the end and his hair also inflamed all proper." On the 21st January 1890 the petitioner matriculated his arms is follows: —" Quarterly first and fourth Azure a deer's head cabossed Or for Mackenzie of, Seaforth and Kintail ; second and third Or it Fess checquy Azure and Argent surmounted with a Bend engrailed Gules all within a double Tressure flory counterflory of the last for Stewart Earl of Galloway. Above the is placed a helmet befitting his degree with a mantling, Gules doubled Argent and on wreaths of the proper liveries are set the, Argent two following Crests, on the dexter a mountain in flames proper and in an escrol above the same this motto 'Luceo non uro' for Mackenzie;. and on the sinister a Pelican in her nest feeding her young proper, and in an escrol above the same this motto 'Virescit vulnere virtus' for Stewart, and on a compartment below the shield are placed for supporters on the dexter a savage wreathed about the head and middle with laurel holding in his exterior hand a baton erect on his shoulder burning at the end and his hair also inflamed all proper, and on the sinister a greyhound proper."

On the death of Francis, Lord Seaforth, the male representation of the Seaforths devolved on George Falconer Mackenzie of Allangrange, who but for the attainder, would have been tenth Earl of Seaforth. The Allangrange family is a junior branch of the Kintail family, of which branch the famous Sir George Mackenzie of Roschaugh was a member. The father of George Falconer Mackenzie was John III. of Allangrange, [43] and he had executed in 1812 an entail of the Allangrange estates on his son and other substitutes, binding them to bear the name and arms of Mackenzie of Allangrange. George Falconer Mackenzie, on his succession, applied to Lyon for a grant of arms, which were granted or matriculated (for as to this there is controversy) as follows:— To all and sundry, whom these presents do or may concern, we, Thomas Robert, Earl of Kinnoul, Lord Lyon King at Arms, do hereby certify and declare that the ensigns armorial pertaining and belonging to George Falconer Mackenzie of Allangrange, Esquire, male representative of Francis, last Lord Seaforth, and only son of John Mackenzie of Allangrange, Esquire, by Catharine, daughter of the Honourable Jane Falconer, and grandchild of the Right Honourable Lord Halkerton ; which George Falconer Mackenzie is great-great-great-great-grand son of Sir Kenneth Mackenzie, first Lord Kintail, and great-great-great-grand-nephew of Colin, Lord Kintail, afterwards first Earl of Seaforth, and of George, second Earl of Seaforth, sons of the said Sir Kenneth Mackenzie,. first Lord Kintail, are matriculated in the Public Registers of the Lyon Office, and are blazoned as; on the margin, thus: viz., quarterly, first and fourth azure, a buck's head cabossed or, for Mackenzie; second and third azure, a falcon displayed argent, charged on the breast with a man's heart gules, between three mullets of the second, for Falconer. Above the shield is placed a helmet befitting his degree, with a mantling gules, the doubling argent, and on a wreath of his liveries is set for a crest a mountain in flames proper, and in an escroll this motto, 'Luceo non uro.' On a compartment below the shield, whereon is this motto, 'Vive ut vivas,' are placed for Supporters two savages wreathed about the head and middle with laurel, and each holding in his exterior hand it baton erect, with fire issuing out of the top of it, their hair also inflamed, all proper. 'Which armorial ensigns and supporters above blazoned we do hereby certify and confirm to the said George Falconer Mackenzie of Allangrange, Esquire, and the heirs-male of his body, its their proper arms and bearing in all time coming."

The male line of the Allangrange, family became extinct in 1907 by the death of James Fowler Mackenzie. He entailed his, estates on the respondent, who was it cousin and had married it Fraser of Bunchrew. The entail contained it a name and arms clause binding, the heirs of entail to assume the name and bear the arms of Mackenzie of Allangrange. In respect of this injunction the respondent and her husband applied to Lyon for a grant of arms. This Lyon granted on 7th February 1908, as follows: "Edinburgh, 7th February 1908.—The Lord King of Arms, having considered the foregoing petition, recognises the assumption of the name of Mackenzie by the petitioners in addition to and after their surname of Fraser, and grants warrant to the Lyon Clerk to prepare Letters Patent granting licence and authority unto the petitioners and to the descendants of their marriage with such congruent differences as may here after he matriculated for them to bear and use the following ensigns armorial, viz., quarterly, first mid fourth azure, it buck's head cabossed or for Mackenzie second azure, an escallop between three cinquefoils argent for Fraser of Bunchrew ; third azure, it falcon displayed argent, charged [44] on the breast with a man's heart gules, between three mullets second, for Falconer; to be borne by the petitioner Mrs Beatrice A, Mackenzie or Fraser-Mackenzie on a lozenge, below which on a compartment are set for supporters two savages wreathed about the head a middle with laurel and carrying on their exterior shoulders a baton erect with fire issuing out of the top of it, their hair also inflamed, all proper and by the petitioner Robert Scarlett Fraser-Mackenzie on a shield above which is to be placed a helmet befitting his degree with a mantling azure doubled or, and on a wreath of his liveries is to be set for crest a burning mountain, proper, and on an escrol over the same this motto, Luceo non uro, and below the shield this motto, Vive ut vivas."

The petitioner began these somewhat tardy proceedings in 1917, nearly ten years after the respondent had obtained the grant. He has been found to fail by the Lord Lyon and by the unanimous judgment of the Second Division of the Court of Session, and I confess in such a matter it would have had to be brought very clearly home to me that the judgment was wrong before I could have advised your Lordships to reverse. As it is I think the appeal fails, not only on the grounds which have been considered sufficient in the Court below, but also in the matter of title. It is, I think, conclusively settled by the case of M'Donnell v. M'Donald [4 S 371] that the Court of Session will never interfere by way of reduction (and it follows that recall, which is tantamount to reduction must share the same fate) with a coat of arms granted by the Lyon in his ministerial capacity, unless the complainer call aver and show that he is entitled to the coat of which he complains. it is true that in his petition the petitioner sets forth, not that he is entitled to the coat of the respondent---which would indeed be absurd as the petitioner has no connexion with either Falconer or Fraser—but that he is entitled to the Seaforth arms borne by Francis, Lord Seaforth, and that the coat of the respondent contains the undifferenced arms of the Seaforths. Now, how, does he support that statement? Merely by saying he is heir of line of Francis Lord Seaforth. Now the whole brunt of the attack rests upon the hypothesis that the arms granted to George Falconer Mackenzie of Allangrange in 1817 were not Allangrange arms, but undifferenced Seaforth arms for, if the coat of 1817 was either Allangrange or differenced Seaforth, then cadit quaestio. Now, if it was undifferenced as the head of the clan, that means that, in a question with Lady Hood, George Falconer was preferred. The controversy has been mooted, but never actually decided by legal decision, whether, on a competition, the heir of line or the heir-male should be preferred?—see the remarks of the judges in Cunningham [(1849) 11 D. 1139] .The very idea of a competition excludes the idea of both being preferred. Of course the one that failed would still be entitled to the family arms with a difference, and at that rate Lady Hood's coat might be read as properly differenced because of the quartering, for she, even on the reading which the petitioner wishes to give to Nisbet's parenthetical comment on Sir George Mackenzie as to differencing by means of quartering, was no stranger to the family. But, [45] if George Falconer Mackenzie succeeded to the undifferenced family arms which were in turn succeeded to by James Fowler Mackenzie, then—on the death of James Fowler Mackenzie sine prole—Who is the heir of line, failing heirs-male, who is entitled ? Following the analogy of heritage it is his—James Fowler's—heir of line, and that assuredly the petitioner is not. Conceivably you might revert to the founder of the family, but the petitioner is equally not heir of line to the first Earl Seaforth. Why should it be the heir of line to one Francis, who was, after all, only an intermediate holder?  I am therefore of opinion that the petitioner, upon the assumption that the coat of 1817 was the undifferenced coat of the Seaforths, fails for want of title.

I think, however, that he also fails on quite a separate ground, namely, that I think the coat of 1817 was an Allangrange coat. It was applied for as an Allangrange coat to satisfy the condition of an entail involving forfeiture upon disregard. It was given as such. No doubt it contained, as an ingredient so to speak, the Seaforth coat. Lyon says that the coat was properly differenced by the Falconer quartering, and I do not see that he is wrong; but suppose it was bad heraldry, it must stand, for it is protected by prescription. The decree of 1817 is a decree conferring a coat as a whole as the arms of Allangrange. Now it is settled law that, quite apart from the question of title in the defender, a pursuer cannot attack if, in order to attack successfully, he must cut down a decree which is more than forty years old. (Dundonald v. Dykes, (1836) 14 S. 737 ; Cubbison v. Hyslop (1837) 16 S. 112.) The decree must therefore stand giving the arms as the arms of Allangrange. If they are Allangrange arms, then what Lyon did in 1908 to satisfy the entail was clearly within is ministerial powers and will not be interfered with by the Court of Session.

The question of supporters cannot be treated as a separate question. No peculiar and exclusive right to supporters of a certain class can be asserted, and, whether Lyon was right or wrong in granting the supporters, the appellant is not in titulo to raise such a question.

I therefore move your Lordships that the appeal be dismissed with costs.

I am authorised to state that my noble and learned friend, LORD ATKINSON, concurs in the judgment which I have delivered.

LORD SHAW OF DUNFERMLINE. —The appellant was within his rights in bringing this appeal. It is competent; beyond that I see very little that can be said for it. In my opinion, it is a misguided and hopeless appeal. To use the language of Lord Fullerton in Cuninghame v. Cunyngham [11 D. 1139 at p. 1150]: "It is one involving no patrimonial interest, and merely relating to heraldic honours. As these are presumed to be the creations of the Crown, I should have thought that any competition regarding them might have been left to the determination of an official specially appointed for that purpose, rather than made the subject of discussion before a Court of law." Just as, however, it was in the time of Lord Fullerton, so it remains till now. Courts of law in their due order as appellate Courts [46] from an undoubted Court of law, that of the Lyon King of Arms in Scotland, are not relieved of the task of determining cases of this character in those instances in which a heraldic right vested in one subject of the Crown has been seized or invaded by another subject of the Crown.

I agree entirely with the opinion of Lord Dunedin.

But I desire to make it specially clear that I do not think that the appellant had or has any title to sue. There is a passage in the case for the respondent which I do not find, after a full study of the documents, which I do not find to be faulty or to fail to express clearly the conclusions which I have myself reached. "The appellant has no title to impugn" the arms of the respondent. He is a Stewart, not a Mackenzie. He is not the Chief of the Clan Mackenzie, not does he claim to be. He is not the heir-male of the Earls of Seaforth, nor does be claim to be. He is not the heir of line of the Earls of Seaforth ; the heir-of-line of the first Earl of Seaforth is the Earl of Crawford, and the heir-of-line of the last Earl of Seaforth is, if anyone, the Earl of Effingham. He is not the representative of any Earl of Seaforth. He is not the owner of the estates of Seaforth,

Kintail. He is not the representative of the Mackenzies of Allangrange whose arms and supporters the respondents bear. He is not entitled to bear these arms, nor does he claim to be. All he is entitled to is to the arms matriculated by him in 1890, namely, his quartered coat, consisting of the Mackenzie and Stewart arms, and the particular supports thereto attached. As the appellant has no right to the arms borne by the respondents, he has no title to pursue the present action." I agree with this statement.

In the ordinary case the determination of such a plea saves judges from entering upon merits and saves parties from the expense of inquiry. It has not done so in this case , and it has to be borne in mind that it might have created difficulties to confine the inquiry as to the descent, title, and rights of the appellant, without being even in that inquiry entangled in an investigation as to the whole lines of descent, say, from the old Lord Kintail, whose title dated from 1609 and whose descendant was attainted in 1715. In short, I think it may be for the best that the inquiry was conducted as it was, and I think its results are compended, in the passage which I have just cited.

I am, however, of opinion that the law with regard to any interference with the administration of the Lord Lyon, or with the exercise by him of his ministerial powers in regard to the grant of arms remains in the same position as that set forth by Lord Robertson in the case of M'Donnell v. M'Donald, [4 S. 371, at p. 372] a decision pronounced in the year 1826. In my view, no appeal to the ordinary Courts of law against such a grant is competent unless upon the ground which I have stated, namely, an invasion of a right vested in the appellant. In Lord Robertson's words, The power of granting ensigns armorial is part of the Royal Prerogative, but everything belonging to that power has been given by sundry statutes to the Lord Lyon. His power to grant new armorial bearings is merely discre[47]tionary and ministerial, and with that this Court cannot interfere. But the Lord Lyon should grant to one person arms which another is entitled to bear, and should refuse to give redress, there could be no doubt of the jurisdiction of this Court to entertain an action at the instance of the party to have his right declared, as this would involve a question of property, which a right to bear particular ensigns armorial undoubtedly is. But a question remains behind, whether the summons in the present case is so conceived, that it could be entertained by any Court. . . . There is no conclusion in favour of his right to these arms; so that, were he to obtain decree in terms of his libel, he could take nothing under it. Popular actions are unknown in our law, and no one can bring an action to take from another what he himself has no right to." The good sense and sound law of this latter proposition are beyond question. And, therefore, it is a startling fact to find that the appellant asks Courts of law to restrain the respondent front using the Fraser of Bunchrew coat of 1908, and from using indirectly the Mackenzie of Allangrange coat of 1817, when, in point of fact, the appellant makes no claim to be the owner of, or the person entitled to wear, either the one of these coats or the other. It stands, accordingly, beyond question that this challenge of the ministerial action of the Lord Lyon is at the instance of a person whose rights to wear the coat which has been granted have not been invaded or taken away. If in such a position room were left for challenges at law, the whole field of heraldry might become a field of  battle, and every member of every clan in Scotland would be vested with the right to fight in Courts of law about matters in which he personally had no heraldic or patrimonial interest at stake.

I only add a word upon three points.

In the first place, I hold that the Lord Lyon and the Second Division of the Court of Session were clearly right in their view with regard to differencing. I refer to a short and simple proposition of Sir George Mackenzie in his very remarkable work The science of heraldry, treated as a part of the civil law and law of nations, wherein reasons are given for its principles and etymologies for its harder terms." Says the famous Lord Advocate (cap. xxi.) : 11 These cadets who have their arms quartered with other arms need no difference ; for the quartering or impaling is a sufficient difference as is clear in the example of" &c. And he further remarks: "It is observable, that though a cadet be descended of a cadet, yet I think, he need not express the difference of that family, out of which he is immediately come : for else the Court should be filled with differences, and the use of differences is only to distinguish from the Chief's family. From this it appears clear to me that quartering is, in the learned author's opinion, a sufficient difference. I find that the other writers on heraldry, and all the authorities, as I read them, from that date till now take the same view. It follows from this that the Allangrange coat was well differenced by quartering, and that it could never fail to be from, never could be read asserting up a claim to the Chief of the Mackenzies' coat, which is :—ArmsAzure, a deer's head cabossed or. Crest—a mount in flames proper. Motto— Luceo non uro. Supporters—Two savages wreathed about the [48] head and middle—holding in their hand a baton erect on their shoulder burning at the end and their hair likewise inflamed all proper. Neither of the parties to this case claims that coat. It is a remarkable fact that the arms themselves—namely, Azure, a deer's head cabossed or" have been differenced over and over again, and that the appellant is himself under a matriculation obtained in 1890, the owner of a differenced coat containing these arms, and also the crest and motto for Mackenzie. In short, it has been recognised by everybody, including, one is glad to see, even the appellant, that "quartering is a sufficient difference." A challenge could accordingly not be made by the Chief of the Mackenzies against the coats of either the appellant or the respondent, and no such challenge has ever been made. It appears to me to be out of the question to permit a challenge by the appellant himself against the respondent. He could only enter the field of the respondent's arms by claiming them, and that be does not do; whereas, for aught yet seen, the respondent arms, granted as for Bunchrew and deduced through Allangrange, seem to have been quite properly granted and deduced.

In the second place, I am clearly of opinion that the Allangrange coat is good against everybody, being fortified by prescription and having granted by the Lyon King of Arms of the day in the year 1817.

In the third place, in my opinion, the objection to the supporters granted by the Lyon King entirely fails. I think the state of the law was accurately expressed by Nisbet, who says [Vol. ii, Part 4, chap. 7, 1816 edition, p. 33]: "It is allowed, by th' Practice of Heraldry, for many different Families to carry the same Supporters without any Ground of Offence, or concluding them to be of one Descent and Kin ; which Practice is frequent with us, especially in using Savages for Supporters." One need not inquire whether that particular practice is still greatly in vogue, but the law applicable to the grant and selection of supporters remains to the present day as it was stated by Nisbet. Fortunately, the knowledge of the Lord Lyon can be relied upon to avert any likely sources of confusion in practice, but the matter is, in my opinion, entirely within the ambit of his ministerial power. He selects for a supporter—among objects supposed to be from the animal world—something real, historical, symbolical, or merely grotesque; anything say, from a unicorn to a savage with flaming hair; all these things may be put or may be found in the field of heraldry, but it is the Lyon King who goes about in that field seeking what he may select.

LORD SUMNER.—In September 1812 John Mackenzie of Allangrange executed a deed of entail of the estates of Allangrange, which are some thousands of acres in extent, destining his estate to his son, George Falconer Mackenzie, and the heirs, male and female, of his body (with gifts-over not now material), under the proviso in common form that his said son "and the heirs substitutes and successors before named who shall happen to succeed to the said lands and barony, and the husbands of the heirs-female, shall be holden and obliged to assume and constantly [49] retain, use, and bear the surname, arms, and designation of Mackenzie of Allangrange . . . in all time coming." It is singular, but it appears to be the case, that there were not then in existence, either by grant or in use, any arms of Mackenzie of Allangrange as such. The entailer, John, died shortly afterwards, but the precise date of his death is not given.

In 1815, by the death without issue of Francis, Lord Seaforth, George Falconer Mackenzie became chief of the Seaforth Mackenzies, and, as such, was entitled to the Seaforth achievement, but the Seaforth estates did not pass to him. The records of the Lyon Court in 1817 certify what are the ,ensigns armorial pertaining to George Falconer Mackenzie of Allangrange male representative of Francis, last Lord Seaforth, and only son of John Mackenzie of Allangrange, by his wife, a grandchild of Lord Halkerton. .These ensigns armorial are, in brief, quarterly a buck's head cabossed or for Mackenzie, and a falcon displayed argent for Falconer, with supporters as hereinafter mentioned, and they are confirmed to him and the heirs-male of his body.

The first question is whether this is a matriculation of the Seaforth arms, undifferenced but quartered with the arms of Falconer, and suitable to the new chieftain who desired to record his connexion with his mother's house, or is a grant of new of an achievement for Allangrange, the introduction of the Falconer coat being used as a difference sufficient to warrant the grant of a new Allangrange coat that could not be confounded with the old Seaforth cont. The appellant contends that the latter would be bad heraldry, but this is not now quite the question. As the Lyon must always be presumed to be a good herald till the contrary is shown, the vice of this particular grant, so construed, if it is vicious, may be an argument for regarding it, mitiori sensu, as not a new grant at all, in which case it would be admittedly good; but the question still is whether it is or is not a new grant, albeit somewhat heterodox.

Even if we were constrained to read the dead language of heraldry as strictly a., we should construe the living language of a deed, it would be fight to take account of the position of the parties and the object which they had in view ; but I do not think that we are so bound. Neither the vocabulary not. the grammar of heraldry possesses the precision without which the strict rules of construction of written instruments cannot be required.

It is admitted that the Lyon has the right, and in practice exercises and long has exercised it, to regard with favour the wishes and interests of those who apply for arms in order to satisfy a name and arms clause, and that, in doing so, he grants arms showing the connexion of the applicant with other families, subject to suitable differences where required. George Falconer Mackenzie had strong and obvious reasons for desiring arms of Allangrange, but arms so blazoned as to show that, as a Mackenzie, he was the chief of the Seaforth Mackenzies, though he succeeded his father as Mackenzie of Allangrange, while through his mother he was honourably. connected with the family of Falconer. The respondents' case is that both his wishes were gratified. As the chieftain he could have matriculated the ancient Seaforth arms, including the supporters, [50] without any differencing, for he took them its heir-male and was. mere cadet; but then, What of the arms of Allangrange, which he was bound to obtain and bear under the entail?  This consideration answers any presumption in favour of augmentation as against abatements, for here we have the explanation—and a convincing one it is—to show why he should seek arms different from those of Seaforth, and not merely Seaforth arms quartered by way of augmentation with those of Falconer. It may seem that this heraldry itself is ambiguous and capable of either interpretation, until the fact is pointed out that the arms of Falconer, Lord Halkerton, were not such as he could quarter as of right as having been his mother's, for she in her turn was not entitled to them as of right. George Falconer Mackenzie's only way of obtaining a right to this quartering was by grant from the Lyon, and the true interpretation of the matter, as one would expect, is that the Lyon granted of new arms of Allangrange, composed of the arms of Seaforth, not differenced otherwise than by quartering with the arms of Falconer. I do not overlook the language in which, in 1829, when claiming to be served heir-male in general to Kenneth, first Lord Kintail, George Falconer Mackenzie recited that he obtained the arms of 1817 from the Lyon under the same degree of relationship to the said Kenneth as he there set out; but this is a mere recital and does not exclude the case of his having obtained it also for the purpose of the entail of Allangrange, and its a grant of new. Nor do I forget that the grant of 1817 is to George Falconer Mackenzie and to the heirs-male of his body, thus limiting it to those of his heirs who would also succeed him in the chieftaincy; but I fail to appreciate how this proves that the grant was not anew grant of Allangrange arms. The fact may be very consistent with a matriculation of the Seaforth arms merely quartered with those of Falconer, but it is no answer at all the point that exclusive devotion to the bare dignity of Seaforth would substantially imperil the inheritance of Allangrange. It seems to in that, unless we are to make a complete jettison of all consideration of the real interests engaged and of the probable intentions alike of the Lyon and of the grantee, these arms must have been given in 1817 as a new Allangrange coat, which the quartering duly differenced alike from the ancient Seaforth arms and from those of Falconer. Such is the Lyon's view ; and with it the Second Division has agreed. I see no reason to differ from it.

If we were to take the contrary view, we must assume that George Falconer Mackenzie was deliberately risking his estate. What in measure of practical risk he ran, if he did not assume the Allangrange arms, I do not know, and in any case, he ran it for a year or two ; but why should he run any risk at all? To say nothing of filial piety and family pride, why should he jeopardise the lands of Allangrange "just for a brisure stick in his coat"? The appellant's case is that, in order to bear the Seaforth coat undifferenced and only quartered for pride or for phantasy with the arms of Falconer, he sought and got no brisure, though without a sufficient brisure he sought and got no Allangrange arms at all. I take him to have been a man of sense. After all he got two small bucks' heads cabossed or instead of one large one, and he kept the acres of [51] Allangrange. He was chief of the Seaforth Mackenzies, which no one could gainsay whatever arms he bore, but the position of chief came to him as one of a junior branch and nothing could alter the fact.

Whether quartering is a sufficient brisure is a question which I will take later. The Allangrange coat of 1817, regarded as a coat differenced from the Seaforth coat, is at any rate not one that the appellant could now ask to reduce. He may decry it as false heraldry, but it stands, and, unfortunately for him, stands by no means alone, as a precedent against him and in favour of that which be does impugn, namely, the grant to the respondent in 1908.

The Allangranges duly bore these arms for about 90 years, and then the present respondent became entitled to the lands, as institute under an entail, on the death of the entailer, James Fowler Mackenzie, in 1907. She was his cousin on his mothers side, and was a Mackenzie of Ord by birth and married to Captain Fraser of Bunchrew. The entail contained .a name and arms clause its before. Accordingly in 1908 the respondent, as heiress of entail, prayed of the Lyon such a grant as would suitably record her marriage and yet entitle her to the Allangrange achievement. She was granted the Seaforth buck's head cabossed or, quartered ?this time not only with it falcon displayed argent, charged on the breast with a man's heart gules between three mullets of the second, for Falconer, but also with an escallop between three cinquefoils argent for Fraser of Bunchrew. The question then is whether, in the case of an heir of entail who is not of the same blood, the Allangrange arms were validly and sufficiently differenced by quartering the escallop and cinquefoils of Fraser ?along with the quartering of the Falconer falcon. If it was, no question arises of the extent to which the buck's bead cabossed or was used, for that is covered by the new grant of 1817; and the respondent has satisfied her name and arms clause, for she took, not the Seaforth coat merely augmented by George Falconer Mackenzie's addition of a quartering of the arms of his mother's family, but the true arms of Allangrange, as granted to him of new, with such difference as her own case required. If so, it becomes immaterial to consider whether on the appellant's side Lady Hood became entitled, on her father's death, to bear the family arms undifferenced, for the arms granted in 1908 cause no confusion with or infringement upon her right, if any; and further, the question whether the respondent herself is of the pure Mackenzie blood or not does not arise, nor does the nice point of the incidence of the burden of proof between the appellant, as bound to show that she is not of that blood, and the respondent, as bound to show that she is. The Lyon, affirmed by the Second Division, is of opinion that the difference here is valid and sufficient, and I think so too.

I could well understand that quartering should never be admitted as a valid mode of differencing, for quartering consists in combining coats which exist already, and differencing is a process of bringing into existence a coat; which hitherto bas not existed at all. It may well be that the arms in question would speak more clearly, if something were superimposed in the same quarter on the buck's head cabossed or, so as to make it a differenced, that is a different, buck's head, instead of merely asso[52]ciating the old buck's head in two quarters with other heraldic ensigns in the other quarters of the shield. I can understand again that, as a matter of uncorrupted doctrine, the same heraldic combination should not be admitted to express two separate propositions, first that, in addition to his family arms, the bearer has acquired broad lands and on mother's side is of high degree, and second that, being only a cadet of armigerous family, the bearer advertises his cadency and avows his subordination. The settled law of heraldry, however, permits this risk of confusion. The appellant does not question it; he only seeks to impose a limitation. However proper it admittedly is to difference by quartering where the grantee of the new arms is the younger son or the younger brother of the bearer of the arms upon which the brisure is imposed, it becomes improper when the brisure is used to difference the new armiger from someone more remote than a father is from a son, say, as is the respondent's case, a cousin on the mother's side, whose propinquity to the old armiger is simply that of an institute in an entail. A cadet can validly difference by simply quartering his mother's coat, but not a cousin. Such is the distinction made. It appears to be rather matter of degree, and, therefore, of discretion, than of doctrine. No clear authority to support it call be found. The broad proposition is asserted by many institutional writers, by Mackenzie, Nisbet, and Seton; Dugdale, too, favours it, but he is English. Mr Fox-Davies recognises the practice, though with disapproval and some doubt (Complete Guide to Heraldry, p. 483). The appellant really only founds on his reading of Nisbet's parenthetic comment (Part 3, vol. ii., pp. 21, 22) on Mackenzie's unqualified propositions (p. 75, see. 4)—a reading for which I can discern no adequate warrant—and on the fact that these writers do not expressly say that this right can be extended to strangers in blood, when they are illustrating its application to the cases of sons and brothers. I think the omission of such a statement under such circumstances is really accidental.

We must remember that the language of heraldry is the invention of a chivalrous but illiterate age, and that it has never been an exactly inflected language. In its day it served its turn ; but since reading and writing have become common accomplishments, its correct idiom has always been in dispute among heralds and antiquaries. I'm unable to see that, in granting the arms of the respondent in 1908, the Lyon erred in any matter of law. He has given his own reasons for supporting that grant, and by those reasons the Second Division was convinced. I am the less disposed to differ from these authorities, because I know myself to be so ill qualified to criticise in a matter, which is not only one of Scots law but of the law of arms, and has so little to do with the serious realities of life. Little as it can be worth, my opinion agrees with the interlocutor appealed against, viz., "find in law that the said arms of 1908 are sufficiently differenced to any arms to which the petitioner has right, and that the petitioner is not entitled to challenge the respondents' right to said arms."

I think this disposes of the case. The supporters—naked wild men with heads inflamed and wreathed about the middle with laurels all [53] proper—were, as I understood, a collateral rather than a substantive matter. The respondent's achievement, if otherwise supportable, does not become bad because of the supporters. Their significance throughout has been due to the fact that they might seem to give colour to the construction of the whole achievement as being the full Seaforth arms merely quartered with those of another family, but, if that quartering is meant to be and is valid as a difference, and the achievements are really the Allangrange achievements as granted to George Falconer Mackenzie and to the respondent respectively, there is nothing in the point. It arises simply from the penury of heraldry in beasts and men suitable for the honourable office of supporters to a coat.

As to the appellant's right to bring this petition at all, I only desire to say that, without deciding the question, which I think it needless to do, I am very far from being satisfied that he has any locus standi in the matter; but, as his appeal fails finally, we need not also say that it never should have been begun.

LORD WRENBURY concurred.

INTERLOCUTORS appealed from affirmed, and appeal dismissed with costs.

Maclean of Ardgour v. Maclean
1941 S.C. 613

Introduction

This is a rather complicated case, revolving around two main issues:
  1. whether Lyon has any jurisdiction in the matter of chiefships of clans,
  2. whether undifferenced arms can pass to a female heir.
Briefly put, the Court of Session said "no" to the first (in a judgment in 1937) and "yes" to the second (in a judgment in 1941).  A detailed description of the case follows.

The case involved two parties, Catriona Maclean of Ardgour (b. 1919) and Lieutenant-Commander Henry Hugh Maclean, respectively eldest daughter (and heir of line), and cousin twice-removed (and heir male) of Alexander John Hugh Maclean of Ardgour (d. 1930).  Soon after his death, a dispute arose as to who was head of the Ardgour branch of the Maclean clan.  On October 1935, both presented their case to the Maclean Association, which found for Commander Maclean was chief.

Catriona Maclean of Ardgour decided to use another method.  Counseled by Thomas Innes, she petitioned Lyon King of Arms in April 1936 for a rematriculation of the arms of her father (matriculated in 1909) in her name; she also asked that the rematriculation contain a finding that she was chieftainess, asked for a grant of supporters as chieftainess, and asked for a brithbrief recognising her as chieftainess.  The petition was served on Commander Maclean, who made a certain number of arguments (pleas in law); among others (plea in law 1) that Miss Maclean of Ardgour's petition, signed by Thomas Innes who was also Albany Herald, was invalid because of the conflict of interest; and (pleas in law 2 and 4) that Lyon had no jurisdiction in the matter of chieships.  On 16 October 1936, Lyon rejected those arguments and asked Miss Maclean of Ardgour to provide further proof of her status as chieftainness.  Commander Maclean appealed that decision to the Court of Session.  The case was heard in January 1937 and remitted to Lyon to answer certain questions. The hearing then continued in May 1937 and advising took place on 16 July 1937.

At this first judgment, the Court of Session disagreed with Commander Maclean on the problem caused by Miss Maclean of Ardgour's counsel being a herald, but agreed with him on the question of chiefships, recalled Lyon's interlocutor of October 1936 insofar as it repelled pleas in law 2 and 4, and affirmed the rest of the interlocutor, remitting to Lyon for a continuation of the case.

Meanwhile, in February 1938, Commander Maclean petitioned Lyon to have his grant of arms of 1933 cancelled, and to have the undifferenced arms of the late Maclean of Ardgour matriculated in his name.  On 19 Dec 1938 Lyon found Catriona Maclean of Ardgour entitled to the arms of her father and to a grant of supporters, and also decided to annull Henry Hugh Maclean's grant of 1933, but not grant him the undifferenced arms.  The latter appealed both decisions in April 1939, and the Court of Session heard the arguments in November and December 1940.

The second adivising took place on 27 March 1941, and in effect rejected Maclean's appeal.  The Court adjourned the next day for the Easter Vacation, and then the Lord Justice-Clerk died before an interlocutor was issued.  After some procedural questions, an interlocutor was signed and issued on 18 July 1941.

The resulting report is 100 pages long and contains:

  • petitions, averments, and pleas of both parties (pp. 614-21)
  • Lyon's interlocutor of 1936 (pp. 622-3)
  • Lyon's answers to the questions of the Court of Session (pp. 624-7)
  • petitions, averments, and pleas of both parties (pp. 627-31)
  • the Court of Session's first advising of 1937 (pp. 631-58)
  • petitions, averments, and pleas of both parties (pp. 659-61)
  • Lyon's interlocutor of 1938 (pp. 661-6)
  • petitions, averments, and pleas of both parties (pp. 666-79)
  • the Court of Session's second advising of 1941 (pp. 680-708)
  • the final interlocutor of 18 July 1941 (pp. 710-4).
  • First Advising (16 July 1937)


    [632]
    At advising on 16th July 1937:—

    LORD JUSTICE-CLERK (Aitchinson).—This is an appeal from an interlocutor of the Lyon King of Arms, dated 16th October 1936, repelling certain preliminary pleas for the respondent in a petition for arms at the instance of Catriona Louise Maclean of Ardgour.  The petitioner is the daughter of the late Alexander John Hugh Maclean of Ardgour, who died on 27th May 1930, and her claim is that, as heir of line of her father, she is in substantive right of his undifferenced arms, as said arms were matriculated by him in the Public Register of All, Arms and Bearings in Scotland on 20th July 1909. The respondent in the petition, the present appellant, is Henry Hugh Maclean, Lieutenant. Commander in the Royal Naval Reserve, who matriculated arms in the Public Register on 20th February 1933, these being differenced from the arms borne by the father of the petitioner.

    The appellant does not dispute that the petitioner is entitled to matriculate the arms borne by her father, she having, as his daughter, a derivative right to his armorial bearings, but his contention is that she cannot do this as a matter of independent or substantive right, so as to make her father's undifferenced. arms transmissible to her descendants. Whether the petitioner is entitled to have the ensigns armorial of her father awarded to her in her own right depends upon whether the heir of line, or the heir male, is to be preferred in a competition according to the law of heraldic succession. That is a meet point in the law of arms, that remains as much undecided to-day as it was in 1849 in the case of Cuninghame.[11 D. 1139] It is a question proper for the decision of Lyon, and in no sense is it before as in the present appeal.

    The preliminary questions raised by the appeal related to what were called generally questions of jurisdiction. The appellant's contention is that certain matters averred by the petitioner are outwith Lyon's jurisdiction as being matters not cognisable in a Court of law, and, therefore, ex necessitate, not relevant to any question of arms. Broadly defined, the appellant's contentions were these---Lyon has no jurisdiction (1) to decide any question of disputed chieftainship between the parties, whether in relation to (a) the ensigns armorial to which the petitioner is entitled, or (b) the claim of the petitioner to Supporters ; (2) to grant to the petitioner in any matriculation of arms a character or designation implying an adjudication upon the question of chieftainship, which is in dispute; (3) to determine any such dispute in the issue of a Birthbrief to the petitioner. The parties are not at issue as to the chiefship of Clan Maclean; they are at issue as to the chieftain ship of the branch of Clan Maclean, known as the Macleans of Ardgour Is that dispute justiciable in this application for arms ?

    Before dealing with this matter, it is necessary to dispose of the question that was raised b , by the appellant in limine affecting the locus of Mr Innes to appear before Lyon and in this Court. Mr Innes holds the office of Albany Herald, and the question is whether his right as an advocate to appear in a Court of law in a contested heraldic case is excluded by virtue of his office. If such a question had arisen before 1867, the point might have raised some difficulty. There is a considerable body of authority relating to the older practice, which it would serve no purpose to examine, that seems to point to the fact that Lyon at one time exercised his jurisdiction in arms with the advice and [633]  approbation of his heralds. But whatever may have been the earlier practice as regards advice and consultation, it gradually came about that the sole power and jurisdiction concerning arms, subject to a limited right of appeal, was recognised as vested in Lyon. The matter is now really concluded by the Act 1867,[30 and 31 Vict. cap. 17] being " An Act to regulate the Court and Office of the Lyon King of Arms in Scotland." Section I provides that " from and after the passing of this Act the jurisdiction of the Lyon Court in Scotland shall be exercised by the Lyon King of Arms, who shall have the same rights, duties, powers, privileges and dignities as have heretofore belonged to the Lyon King of Arms in Scotland . . .", and section 2 enacts that Lyon "shall be bound to discharge the duties of his office personally and not by deputy." It was conceded by the appellant that since 1867 Lyon has sat alone in the Lyon Court in dealing with applications for arms, and warrants and decrees relating to arms have since 1867 been issued in his name only. The only question, therefore, is whether the possibility, which I shall assume, that Lyon might utilise the office of one or more of his heralds to investigate some matter incidental to arms is a proper ground for excluding Mr Innes from appearing in a cause in which his services have not been so utilised. I can see no more ground for saying so than for saying that an advocate appointed by this Court as a commissioner to take evidence, or to report on a remit, in any case, would be debarred from appearing as an advocate in this Court in other cases. The right of an advocate to appear in any Court of law in Scotland, or before the Privy Council, or the House of Lords, is not a matter of mere favour or courtesy, but is a right at law, upon which a member of the bar is entitled to insist, and which ought to be jealously guarded. An advocate's right of audience cannot be excluded unless upon some ground that would make his appearance incompatible with the proper administration of justice. It is enough in the present case to sky that Mr Innes is neither a member nor an officer of the Lyon Court, nor does he stand in any advisory relation towards the Lyon King. I regard the objection as without substance, and, as already intimated, it is repelled.

    The main question now to be considered is whether Lyon has jurisdiction to decide in the petitioner's application for arms, or as incidental thereto, any question between the parties as to who is chieftain of the Macleans of Ardgour, they being a recognised branch of Clan Maclean. Each claims to be chieftain of Ardgour. If the petitioner when she framed her petition for arms had made it quite plain that all she wanted was that the undifferenced arms of her father should descend to her in substantive right, and in virtue of her character as heir of line, there would have emerged for Lyon a simple issue in the law of succession in arms, that is simple as regards what the issue was, although the solution of "such a mystery," as Lord Fullerton described it in  Cuninghame, [11 D. 1139]  might have been involved in great obscurity. Unfortunately the petitioner in her pleadings, as they were originally framed, preferred a [634] wider claim, raising a larger issue than mere representation in arms. She sought to have it declared by Lyon that, being heir of line and representative of her father, " as such she was head or chieftainess of the house, branch, or family, of Maclean of Ardgour," and, if Lyon thought proper, chief of the name and arms of Maclean of Ardgour (conclusion 2). I need not refer to other passages in the pleadings, as they stood, beyond saying that this claim to chieftainship, ostensibly used as synonymous with headship of an armigerous house, importing, as a consequence of representation, an additional status, or dignity, and a right of " place " in Clan Maclean, is to be found right through the. petitioner's pleadings. I hope it is not uncharitable to say that these would appear to have been so framed to enable the petitioner to obtain a finding from Lyon, if Lyon could be induced to make it, that the petitioner enjoyed the dignity of chieftain of the Macleans of Ardgour, that being a matter with regard to which the parties are in violent controversy.

    In the course of the debate the petitioner amended her petition with the effect of seeming to narrow the issue between the parties. Thus her second conclusion, which I take as typical, now runs:--- "To record petitioner in said matriculation as lineal heir and representative of the noble and armigerous house or family of Maclean of Ardgour, and as head or chief of the noble and armigerous house or family of Maclean of Ardgour, and if your Lordship thinks proper chief of the name and arms of Maclean of Ardgour." The result of this amendment is, that the petitioner no longer appears to claim to be declared, or to be recorded in the register under the designation of, chieftainess, and Mr Innes has expressly disclaimed any intention on her part to raise before Lyon any issue other than representation in arms and what is strictly relevant thereto. But "what is relevant thereto" may simply lead to a recurrence of controversy between the parties. I think, therefore. it is desirable, if not indeed necessary, notwithstanding the amendment, that the Court should say something upon Lyon's jurisdiction, particularly in view of the elaborate argument to which we listened.

    The greater part, if indeed not all, of the difficulty that has arisen in this case has been due to the indiscriminate use of the term " chief " without any proper definition of its meaning in the law of arms. In strict heraldic usage " chief " and " head " are interchangeable terms. The person who bears the undifferenced arms is the " head " or " chief " of the armigerous family. Thus "chief" appears in the Act 1662, cap. 53, in a reference to " the usurpation of cadents, who, against all rules, assume to themselves the arms of the chieff house of the familie, out of which they are descendit," and again in the Act of 1672, cap. 21, in a reference to persons " who have assumed to themselves . . . the arms of their chieff without distinctions." The context shows that what was meant was chiefs or heads of families, for the Act 1672 goes on to direct that all users of arms or signs armorial shall bring or solid all account, either to the clerk of the jurisdiction where the persons dwell, or to the Lyon Clerk, of what arms or signs armorial they are [635] accustomed to use, "and whether they he descendants of  any familie the arms of which familie they bear, and of what brother of the familie they are descended," showing the distinction between the "head" or " chief " of the family and the cadet. This is a clear statutory recognition of what "chief " means in the law of arms. It is simply " head " or " principal " of an armigerous family. Its correct use is shown by a sentence from Mr Stevenson's classic work on Heraldry in Scotland, where he writes (vol. ii, 352): " There is no necessity to suppose any denial at any time of the principle that the hereditary arms of the family should go undifferenced. to the  chief  representative of the family." Here " chief " means " principal " or " head " which is the correct heraldic use.

    Has chiefship of a clan, or chieftainship of a branch of a clan, apart from headship of an armigerous family, any significance in the law of arms? The existence of chiefship and chieftainship, as. part of the political organisation of the Highlands, has been recognised by statute, as, for example, by the Act of 1587, cap. 59, which ordained any party harmed by oppressions or thefts " to require or calls require redres thairof at the cheiff of the clan or chieftane of the countrie wherein (his) saide guidis sal be ressett." Similarly, an Act of 1593 ordains sureties to be entered by " the chieftanis and chieffs of all clannis and the principallis of the brancheis of the saidis clannis duelland in the hielandis. . . ." This has no relation to arms. The reference to " chief of clans " and " principals of branches " is not to persons bearing coats of arms, but to persons who were vested with military power and authority in the clan organisation of the Highlands that existed in the sixteenth century. There is no evidence of any practice that would point to the use of " chief of clan," or " chieftain of branch of clan," as correct heraldic descriptions of headship of an armigerous family. The characters may, of course, concur in the same person, bid, they are not identical. Thus, in the case of Stewart Mackenzie,' the chief of the Seaforth Mackenzies in 1817, who was one of a junior branch, bore the arms of Allangrange.

    Arms being in their nature hereditary and transmissible, except where the grant is expressly restricted to the original grantee, the question of succession in each case is, Who is the proper representer of the original grantee, as such entitled to his undifferenced arms? Where the grant itself defines the succession, no difficulty arises, provided the destination is free from ambiguity ; but, if the order of succession is not defined, it falls to be regulated by the common law of arms, and a real difficulty emerges as to whether arms descend at common law to the heir male or the heir of line. Is there ally inflexible rule of heraldic law whereby the heir male is preferred to the heir of line, or the heir of line is preferred to the heir male ? If there is an inflexible rule preferring I he one or the other, then the succession will follow the rule, but, if there is no inflexible rule, the question arises what considerations[636] are relevant to determine representation, and, in particular, if there is a dispute as to who the chieftain is, in the sense that there is divided recognition within the branch, is that dispute justiciable in the Lyon Court so that Lyon's determination of it shall have the force of law? That is the immediate issue in this appeal.

    In answering this question, the fundamental thing to bear in mind is that neither chiefship of a clan, nor chieftainship of a branch, subject to one exception as regards the right to supporters in arms, is any longer a status known to the law. Highland chiefship or chieftainship in the modern sense is today no more than a high social dignity. Historically it was otherwise. The chief and the chieftain were at one time in the governmental system of the Highlands high political personages, who wielded a large and often an arbitrary authority. But not even a semblance of this now remains. To stand in the succession of an ancient line of chiefs or chieftains maybe a legitimate ground of family pride, but it is not a status that the law recognises. It carries no I patrimonial consequences that the law will countenance and enforce, subject to one exception in the law of supporters. It does not depend upon any defined law of succession of which a Court of law could take cognisance. It ultimately depends, as it must, upon recognition by the clan, in the case of chiefship, or the branch of the clan, in the case of a lesser chiefship. The recognition of the clan or the branch is immune from challenge before any tribunal. Historically the idea of a chief or chieftain submitting his dignity to the arbitrament of it Court of law is really grotesque. The chief was the law, and his authority was derived from his own people.

    There is no instance in the registers of any judicial decision by Lyon in a disputed question of chiefship or chieftainship. The only instance founded on by the petitioner was the finding by Lyon regarding the chiefship of Clan Chattan on 10th September 1672, and referred to by Nisbet in his System of Heraldry, vol. ii, app. p. 48. It is contained in a writ of date anterior to the commencement of the extant public register of genealogies. The declaration runs :---" I, Sir Charles Areskine of Cambo, Knight Baronet, Lord Lyon King of Armes having perused and seen sufficient Evidents and Testimonies from our Histories, my own Registers and Bands of Manrent, doe hereby declare, That I find the Laird of M'Intosh to be the only undoubted Chieff of the name of M'Intosh and to be the Chieff of the Clan Chattan, comprehending the M'Phersones, MacKillvrays, Ferquharsones, M'Quins, M'faills, M'baines, and others, and that I have given and will give none of these families any arms but as cadents of the Laird of _M'Intoshes familie, whose predicessor married the beretrix of the Clan Chattan in anno 1291 ; and that in particular I declare, That I have given Duncan M'Phersons of Clunie a coat of armes as a cadent of the foresaid familie. And that this may remain to posteritie and may be knowen to all concerned, whether of the foresaids names or others, I have Subscribed thir presents with my hand at Edinburgh the Tenth (lay of September 1672, and have caused append my seal of Office thereto."[637] It will be noticed that this declaration proceeded simply upon a perusal by Lyon of evidents and testimonies from " our histories, my own Registers, and Bands of Manrent " and that it was in no sense a finding pronounced in a lis or contested process. It vouches nothing beyond that in this particular case Lyon made a declaration of chiefship. Similarly, the matriculation of the arms of the chief of the M'Naghtons proves nothing. It appears in Lyon Register, vol. ii, p. 172, under date 13th January 1818---" The grantee " it runs " is now acknowledged to be chief of the ancient name and clan of M'Naghton conform to attestations shown to me, Lyon Depute for Scotland, of upwards of 44 of that name in Scotland." This is not a decision in a lis ; again it is simply a recording of the dignity of a chiefship acknowledged by attestation. The only other case to which reference need be made is the case of Drummond of Concraig referred to by Lyon in his answer to question D 1. In the matriculation of Drummond of Meginch in Lyon Register, vol. i, p. 546, under date 17th April 1788, his ancestor Drummond of Concraig is referred to as " the chief of an ancient and respectable branch of the illustrious family of Perth from which most of the Sovereigns in Europe are descended." This is the only instance to which we were referred of a chief of a branch being mentioned, and it is only designation. It is not a declarator or a declaratory finding of chieftaincy. In none of the writs which were before us can I find any support for a conclusion that Lyon at any time either claimed, or exercised, a jurisdiction to determine disputes as to which of competing claimants to chiefship or chieftainship was to be preferred.

    Apart from arms, Lyon could not entertain a suit in a question of a disputed dignity. Can he so do incidentally to arms in deciding representation ? We were not referred to any statute, nor to any heraldic authority, nor to any practice in Lyon Court, that would warrant, or even hint, a conclusion that such a matter is within the province of Lyon to decide as something pertaining either directly or indirectly to his jurisdiction proper in arms. After giving the best consideration I can to the elaborate argument that was addressed to us, I am satisfied that chieftainship of a branch of a Highland clan has no armorial significance. It carries no insignia, and it involves no patrimonial consequences. If it lingers in the social custom of the Highlands, it is only as it survival and a remnant of an older order, associated with turbulent and lawless times, that has long since passed away. I cannot think of any sanction known to the law that could enforce a finding of chieftainship upon a recalcitrant clan.

    The petitioner also craves a patent of supporters to be added to her achievement in respect that she claims to be representative of the barony of Ardgour, which existed anterior to the year 1587, and thus to fall within one of the recognised classes of persons who have the right to require supporters according to existing heraldic law. The appellant has no interest to oppose the petitioner, except to see that, in deciding as to supporters, Lyon does not determine the dispute of chieftainship, [638] or make any finding thereanent. Chiefship of a clan carries a legal right to supporters ; it is the one patrimonial consequence that flows from chiefship, but the chieftainship of a branch has never been regarded as carrying a right to supporters. But this is really on the merits for Lyon, and I say no more than this, that in the matter of supporters, as of arms generally, a dispute as to chieftainship is not cognisable in a Court of law. But I would add on the question of supporters generally, in view of some observations to be made by one of your Lordships, that I agree with the view expressed by Lord Sands in  Stewart Mackenzie [1920 SC 764]  where be said (at p. 803) : "I am not prepared to affirm that the power of Lyon to grant supporters is limited to cases of absolute right, and that there may not be cases where, for special personal, or family, or traditionary, reasons, he may exercise a discretion. "

    A great deal was said in the course of the argument as to the designation appropriate to the petitioner if she succeeds in obtaining her father's arms. That again is for Lyon, and until some designation is assigned the petitioner inappropriate to arms, and to which the appellant has an interest to object, and which can be raised before us as a question of law, it is not necessary to say anything beyond this, which I have no doubt Lyon will keep in view, that, if the petitioner succeeds in her own right, the character of her right can be set out in the matriculation.

    The only remaining question concerns the birthbrief. This raises no new issues and is covered by the observations already made.

    In view of the amendment made by the petitioner it might have been thought sufficient to remit to Lyon  simpliciter  the only question now remaining between the parties. The petitioner does not now seek in this process to be declared, or designed, chieftainess of the Macleans of Ardgour. The only issue now left is the issue of arms and supporters in relation to the heraldic law of succession. In affirming as we do that Lyon has no jurisdiction to decide a dispute as to chieftainship, as incidental to arms or supporters, we tire to that extent limiting and defining the area of inquiry, and definitely excluding front inquiry and judgment the issue of chieftaincy , upon which parties are at variance. In taking this course we are not, in my judgment, laying down anything contrary to any final view which Lyon himself has indicated. In his interlocutor Lyon repelled the first four pleas in law for the respondent (the present appellant,) and  quoad ultra  allowed parties a proof of their averments. Plea I which relates to Mr Innes's locus, and plea 3 which is " all parties not called," were rightly repelled. lit repelling plea 2 which relates to the jurisdiction of Lyon to determine chieftainship, and in repelling plea 4 which relates to the relevancy of chieftaincy to a grant of supporters, Lyon did not proceed upon the view that he had jurisdiction to determine a disputed question of chieftaincy, or that he could hold an inquiry upon such a disputed matter in relation either[639] to arms or supporters. As I understand his judgment he repelled the pleas, merely so as to leave open for his consideration at the proof everything that might turn out to be relevant to the issue of arms between the parties. I think the better course is that we should vary the interlocutor of Lyon by recalling it in so far as he has repelled pleas 2 and 4, in order to make it quite plain that the questions of chieftaincy and the position of the petitioner and the respondent (the appellant) relative to the chief of the Clan Maclean or their relative places  within the Clan are not within the ambit of the present inquiry. It will, of course, follow that all averments of parties relating to any of these matters will be excluded from probation.  Quoad ultra  the interlocutor of Lyon will be affirmed. The result is that the case will go back to Lyon in order that he may decide the question of arms and supporters, and, when this is done, I hope it will be the end of this melancholy and barren controversy.

    LORD MACKAY.---This appeal from the Court of the Lord Lyon is not a final appeal on any merits decided between the parties, but wag presented to us in relation to the petition of the lady, respondent to the appeal, Miss Catriona Maclean, as raising two important points. The first and most important was a question of jurisdiction---whether the Lyon (as be was supposed to have posited by allowing proof at large of all the statements in support of the petition) has an original or any jurisdiction to deal with disputes as to Chiefship or Chieftainessship within a Clan domiciled in the Highland or Gaelic regions of Scotland. The second related to the relevancy of averments and particularly to some supposed to lead up to a right to have supporters allotted as part of Miss Maclean's achievement.

    A third point occupied much of the time before us and was historically interesting in itself---this was as to the right of a Herald, as one being (it was argued) one member of the " Court of the Lyon King of Arms," to compear as the counsel of one party against an opposing party in a contested claim to Arms or Honours within the Lyon Court's jurisdiction.

    I. Now, the point of title to plead, both before the Lyon and on appeal before us, must naturally first be decided. We have all arrived at the conclusion, rather negative in form, that the Counsel in question, being in the first place a member of the Bar, and having, therefore, the right of access to all legal Courts within the realm and the right of audience, cannot be held barred from claiming that right because he has accepted, after his call as member of the Bar, an office within the Court of the Lyon described as Albany Herald. We fall Dow to state our reasons. This office is since 1867 paid by salary from the Treasury, but prior thereto depended on fees to be exacted from petitioners or litigants by use and wont or regulated tinder Statute. It is not, whole-time, and persons occupying it may and do practise as agent or as counsel, or otherwise at their professions.

    Now, I am bound to confess I have had great difficulty. As a general [640] principle of law I should firmly predicate that it is against public policy, for any member of any Court which is palpably a legal Court (and this, I am sure, is such) to use his position within that Court in such a way as (1) to benefit by special knowledge acquired within its doors, or (2), to have a closer access to the ear than others can have, and through being so situated have special " authority " for the statements made on behalf of his clients, as to aid in special his pleading there. In other words, however strictly and honourably an individual may behave, and however aloof keep himself (these I fully concede in the person before us), it is inexpedient that a member of any Court (albeit not actually engaged as Judge, and not having advised in the particular dispute before it) should descend and become the pleader. A strong instance would be if a member of the body of Magistrates (being a person. able to plead as agent) should try to appear before the Magistrates as a licensing Bench in Burgh, saying, "I know nothing of their views in this present application and my presence on the Bench is not required."

    So much being said on principle, Mr M'Kechnie was able to convince us at least (a) that originally Lyon was only one Herald among many, albeit the chief ; (b) that all the Heralds together (being then 7 including Lyon but now 4 including Lyon) constituted one Court of Arms, and so it was that the " pains " decerned for passed " to the use of the said Lyon and his brethren heraldis "---or, as it is sometimes put in the Acts, " To Lyon King at Arms and his Brethren " ; (c) that the Act of 1662, cap. 53, which appears to have been a statute enacted with (it came to be thought) too great favour to the holder of the Lyon's office, but which did incidentally pronounce as follows:---" That no man may carrie the arms of any noble familie of his name except he make it appear to the Lyon (who is hereby declared to be the only competent judge in such caces (sic) and debates) that he has descended of that familie " was rescinded in 1663, and that the Act of 1672 replaced the Court as it was in 1592. And, therefore, I think that up to the passing of the Act of 1867 the Court remained a Court of the Realm with multiple members, and each and all of the Heralds were competent to sit and/or to advise, even if the " Certificat " or Warrant " or Extract proceeded in Lyon's name alone.

    But I am persuaded on the other hand that the Act 30 and 31 Vict. cap. 17 has been construed and understood in practice for 70 years as confining the jurisdiction to deal with, take evidence on, and decern for or warrant entries in " his Registers " (see 1672 Act) to the Lyon King of Arm,; alone. We ought not at this date, (,veil upon a quite possible other reading of the Act of 1867, to go back upon the practice of seventy years. Hence in disputed cases (other than messenger-at-arms) Lyon has now a sole and exclusive jurisdiction and the Heralds, other than he, do not now in practice (a) sit with him, with a voice or a vote, (b) advise him with their special knowledge. I am not to predicate (though this was argued as a test) that no Herald may visit stones or monuments or other immovable local evidence on Lyon's behalf even while he [641] acts in his judicial capacity, and having done so, report to him. That, however, is not done by a Herald as being the Judge in the disputed cause. A person need not for that be barred generally, any more than is counsel, who has once taken a commission to take evidence or recover documents, barred from pleading in other cases. Hence it results that a Herald who has not advised or meddled in a particular dispute is not barred. However strongly  I personally think it would be expedient that the three remaining Heralds still bearing commission, as they do, from His Majesty as members of the Court, should confine themselves to adequate conference with the now single Judge, and should be available at all stages to aid him with their specialised knowledge, it is not, I find, possible to-day to say that one, not specially instructed with inside knowledge of the Court's inner mind, is barred from his right of audience. Personally I should have been glad of the other decision, if only because Heralds other than Lyon have now been reduced by force of Statute to three, and one, or at most two, prospective parties may very easily by their retainer exhaust all the specialised. pleading that is available in Scotland. We, however, sustained the locus  advocandi of the Herald.

    II. As to the other questions, at one time so much progress was made during the two hearings before us, and such extensive amendments had been proposed and allowed, that I had thought it might be unnecessary to pronounce at this stage upon the many interesting subtleties of the debate. In the end I do not think that simple course will do. Public interest has been (beneficially) aroused in the language of Heraldic Honour. And in this jurisdiction of ours which (being the only one of its sort in the United Kingdom) I regard as of the highest importance and dignity, the opportunity should not be shirked of establishing the law on large questions which the parties have diligently sought to illumine. Further, in my belief the amount of apparent agreement or common ground brought about by the amendments is not so great as would at one time appear.

    I ask, first, whether there was reasonable apprehension in the mind of the respondent that the proof to be led below was to traverse questions of disputed " Chieftainship " in any obnoxious sense, and that Lyon held it open to him to pass upon such questions---questions lying well outside the right of succession to Arms or their appurtenances. I think the fear was well-grounded. (a) The lady designated herself (and does to this day) in the prayer of her petition, as " lineal heir and representative of the ancient house of Maclean of Ardgour, and as such, Chieftainess, alias real head (in Gaelic Ceann Tighe) of the house branch or family of Maclean of Ardgour and Chieftainess of the Country of Ardgour, that is, Chieftainess of Ardgour." She has not amended away that claim to such honorific designations. (b) The claim is, generally speaking, one to an Achievement of Arms and includes a claim, as I read it, to a " Coat " emblazoned on a shield proper, that is, not on a lozenge which is the ordinary bearing of a lady, wife or daughter of an armigerous man ; to two Supporters, to be chosen for her by Lyon [642] but still Supporters only obtainable as  of right  in respect of certain limited characters ; and to a " Badge and Standard " to be issued to her for her use in badging (as she puts it) " her Following of the Men, Might and power of her House and Country of Ardgour."  I shall deal in a moment with the fourth claim which as craved is one of a slightly different quality, for the issue of a  Birth Brieve.  But, meantime, I am satisfied that in respect of each of the three heads I have mentioned, in the formulation of the craves which postulate for legal " findings" (25 in number), and also in the motion for " Warrants " to issue to the Lyon Clerk (six in number), the Petitioner continued to demonstrate that her conception of the Lyon's powers, and of her rights to such. recognition, were not bounded or limited by an asking for a matriculation of old Achievements, or even for a meritorious grant of a new Achievement. Rather she claimed Rights, to be declared in this Court of Arms, that were to be a  result  of, and not a mere  step  in, her right to her father's recorded arms, and of other facts to be proved. As I do Dot think this reading of her claims was ultimately disputed by Mr Innes, and as I regard the amendments as intended to cure the vice, I need only refer, inter  alia , and shortly, to the claim to be recorded as lineal heir of the "house,  branch  or family," and  as  such  Head  or Chieftainess  of the Home, Branch or Family, and " if your Lordship thinks proper Chief of the name and Arms "---all these claims being stated with Capital Letters. (I have put in italics those words or expressions which voice the objected pretensions). So again, the Supporters petitioned for, are not to be to her personally but are to be " with destination to Petitioner's heirs bearing the surname of 'Maclean of Ardgour ' and succeeding to the lands or chief messuage of the Barony of Ardgour, whom failing to her lineal heir and representative bearing the " said surname. I think, too, that the claim to decorate with Badges or a Standard the " Men, Might or Power of her " neighbourhood points in the same direction.

    The fourth matter, that of a birth brieve, I have mentioned in passing. It is right to point out that, as it was argued to us, Petitioner's right to have a, Birth Brieve prepared by the Lyon, and certified, or " certificated " to her, was not either a sequel of the foregoing Warrants as to registering an Achievement of Arms, or yet a necessary precedent. It was said that from time immemorial or at least very anciently the origin of the separate Register now designated " The Public Register of Genealogies " (Innes, Scots Heraldry, 1). 1:37), was in a collection made of actual issues of (or retained copies, perhaps, of' issued) " Certificats " of Pedigree. I am willing to take it, and indeed accept it as historically established, that this Register, dating it) actual origin only to 1727, is proof of a use and custom dating back to such ancient times as to establish an appropriate right awl jurisdiction in the Lyon Court to hear proof as to, and hold proved, and to record pro bona memoria, the descent on both father's awl mother's side offered by any noble liege to be put in proof. The Lyon from of old did so, (after [643] formal proof) by the issue---not of extracts of Interlocutors or Judgments---but of " Certificats " to be displayed by the receiver. But then I regard that as a matter of use and wont, not of law; and to be for the satisfaction of the honourable recipient as to Pedigree alone. It is doubtful if it can be shown to have any legal force or effect, if Lyon were to purport to hear proof, counter proof and cross-examination on both sides, where contestants to the alleged Pedigree appear before him, and to issue judgment thereon, sustaining one side and repelling the other. Dispute in such matters is for procedure by Service or before a Commissary, or the like; or in claims to titles of nobility, the House of Peers. For it should not be forgotten that it has been held that all Lyon's judgments are enforceable through the High Courts, who will authorise the issue in support of them of all their usual and competent diligences---Macdonell v.  Macdonald .[4 S 371, and Innes, Scots Heraldry, pp. 11 and 15] I  am prepared to say that these old " Certificats " have not the value or vigour of a legal determination. In any case, the jurisdiction in ascertaining pedigree certainly cannot, and, therefore, should not, deal with the purely legal claims of Coronership (an ancient office under the Crown) or of having ancestors claiming to be the Heritable Bailie or Sergeant of a territorial Duke. And the original crave went on thereafter to deduce from such offices as follows : " If it seem to your Lordship (the Lyon) that Chieftancy of a Country, as distinct from Chieftancy of a house branch or family, may conform to . . . 1587 . . ., be used as a description, that she  (i.e., certify that she)  being Chieftainess  and  disponee foresaid  may briefly be described as Chieftainess of Ardgour." All that (which seems to folk of Highland ancestry a great deal) was inserted into the Sixth Warrant, and was made matter of special averments, and, therefore, was part of the request for proof between these two contestant parties. It was all among the matter sent by the Lyon to proof, without reservation of pleas. Here again, then, I think the appellant's fears of excess of jurisdiction and waste of time and money were well grounded.

    The amendment has no doubt done much to mitigate the grievances, but all the matters I have had regard to, seem to me to show that the intentions were of the broadest kind. And I read the Lyon's Note as substantially giving prima facie countenance to what I may call the major view of the various craves of the petition.

    Now, I think we ought to and can, here and now, dispose of much of that and, disposing of it, bring the costs and labour worked into this purely heraldic matter back to a decent moderation.

    A. I propose to affirm (a) that there is no original (or other) jurisdiction in the Lyon Court to entertain and decide by Declarator or other Decree a dispute between two persons as to the Chiefship orChieftainship  of a Highland Clan---or as to the alleged status of Chieftainess or Chieftan (if that designation, counter to the report[644] to our Question made by the Lord Lyon, differ in any way from " Chief " in the full sense) of a Family within such Clan, or of a " Branch," so-called, of a Clan. I certainly understood MT Innes to argue fully, while maintaining that it was not necessary for him to argue, that such a power existed in Lyon, and was justified in historic instances. If it existed and if exercised, then, as I have shown, the result would be a legal determination of Chiefship, unless success. fully appealed to the proper higher Courts. And these Higher Courts must again entertain such dispute. It is true that Mr Innes alternatively and more modestly stated what his client did claim (as amended) and said he " did not need to put it so high." But he did not renounce the claim to it higher jurisdiction with any authority capable of binding the Court below not to overpass what he (as counsel) thought sufficient in the circumstances for him. In these circumstances, public interest seems to call for our decision on the claim.

    I am against the contention  (a)  because in the statutes regulating the Court from 1592 to ditto there is nothing to suggest it, (b) because in point of principle (all Courts flowing from the Sovereign power) the constitution of a special judicial power, lower than the Supreme Courts who have power over all things justiciable not otherwise exclusively assigned, to determine these things, cannot be presumed, and (c) because in answer to our requests for precedent, no authentic instance can be shown in the three or four centuries covered by Lyon's and parties' research of its exercise. I thought that Mr Innes sought to derive it historical claim by going back to the half-mythical period of the Irish Ardrigha and their bards. Old as " the Lyoun " is (and I think we find the King's Herald well recognised in Wallace's and Bruce's times, see Blind Harry's " Wallas "), I cannot derive legal affirmation of his functions from such very ancient matters. Of modern instances none whatever was shown to us which satisfy the condition of disputed claimsuits---(See Answers to our Questions). The nearest was: the alleged instance of the Clan Chattan (1672). But it is perfectly clear on the explanations furnished to us that this document was not a grant of arms, but a Certificate explaining to the recipient that the Lyon had only granted certain Arms to another as Cadent's Arms ; and that he would in future grant none but Cadent's Arms to others of the name. 1. regard the pledge for the future as outside any legitimate legal act. Otherwise there wag no decision as to the Chiefship of a Clan between two contestants. The only other case in 1794 (of Cameron of Erracht) was one of a set  of reductions of his previous decreets (a process quite open to Lyon---see  Stewart Mackenzie's  case [1922 S.C. (H.L.) 39] is having been obtained by misrepresentation. I do not, therefore, see that it satisfies the requirement as a precedent.

    (B) As regards the Coat of Arms as such and the relevancy of the averments, I propose to hold that the Lyon may properly decide any claim to " matriculate " in existing Coat i.e., to have a right to it by [645] succession according to the law of Arms (which may, on inquiry, well turn out to be somewhat different from the laws of ordinary succession in heritage) ; to hold also that in any dispute as between the heir male of the ancient armigerous family, or of the last person recording (or using without rematriculating) some ancient Coat of Arms, and the heir of line of the last person recording his title thereto, Lyon is the proper judge of first instance, and we will not  hamper him at this stage ; to hold also that the question of a woman, because of her direct descent from a registered holder, being entitled (or not entitled) to have her inherited insignia placed upon a proper shield---a full Coat of Arms---and after her life interest (as it is sometimes called) has expired, to transmit it, by virtue of a recognition in the Lyon's Register, to her own posterity---that also is for the Lyon.

    But I am for pronouncing definitely that it is not for the Lyon to follow up such a decision in succession to Arms by any interlocutor which shall purport to derive from the decision as to the undifferenced Arms, that the new holder entered in his Register is " as such " Chief or Chieftainess of the  Branch of a Clan in the Highland sense. I note especially that by the mere terms of the crave (No. Second ") this resultant cannot be  Chiefship  in the full sense, for a Branch " must necessarily be a minor thing---the subordinate off-shoot of some Stem or Tree.

    The attempts by the Lyon in his Answers to our Queries to bring forward evidences to form a foundation in use and wont for such jurisdiction seem to me each and all to fail. Either they were old applications and by their terms unopposed, or (at what is regarded by modern authors as a poor time in Scientific Heraldry) gave to the Petitioner just whatever might be asked. The strange case of Drummond of Megginch (1788) seems indeed to stand alone. That is the case where a Lyon inserted an assertion, relative to an ancestor some generations back, that from him nearly all the. royal families of Europe were descended. Very clearly that would not be affirmed in this Court or in the House of Lords unless such claims were essential to justice, and expressly well vouched. Or, more frequently, the supposed authority was no more than a statement of the obvious. By the obvious, I mean that when Heraldic writers availed themselves of English terms like " Chief of the Arms," or " Chief of the Surname," they were plainly just transliterating the common language of Mediaeval Chivalry, to wit, the French (in French the phrase quoted so often is " chef (111 non et des armes "). Nisbet and Mackenzie, when the passages, truncated in the print laid before us, are read in full, are found to be searching simply for words to explain and define the primary distinction, in all descents of arms, between him who is entitled to the principal undifferenced Arms (" chef du nom et des armes ") and him who may only be a " Cadent," i.e., may enjoy them if he uses a label, bordure or other " brisure " or difference. I think it was in fact plainly in that sense alone that the writers whom they quote, used the word " chef " or the word "chief." I would like to keep this Court [646] absolutely right with historians and genealogists, so I add it is no doubt true that where certain Arms were originally granted to one then recognised by the Clan  duaine-vasals as undoubted Highland Chief of a recognised Highland Clan, the ascertainment, by the Judge of Arms of who is the " chef du nom et des armes d'une famille " may have some influence upon those who are the true and only tribunal, the Clan in general conclave, or the principal landed gentlemen within the Clan, when they are called upon to select or " recognise " their leader. Also, in contrariwise, if the Arms or Achievement is held by proof of use to have been Arms of the Chief of Clan, as such Chief, and not simply as " heir " proper of anyone (see for suggestions at least of this view Stevenson, Heraldry of Scotland, pages 312 onwards ; Innes, Scots Heraldry, p. 92 ; Cuninghame,  11 D. 1139), then the Clan's recognition may be regarded as a forcible, or even determinative factor, by the Lyon. I am of opinion that these important views of the limited function of the Lyon's Tribunal in things of Chiefship in the Highlands, recognised as it if; by practically all writers, Sir Walter Scott, Historiographer-Royal Skene, Frank Adam,  et aliis,  are well illustrated and proved by the instance of M'Naghtan (1818). Beyond that, in my judgment, Lyon cannot possible go.

    (C) In regard to Supporters, the question is different. This is a claim  to a novel grant. Miss Catriona, does not claim  (a)  that her father or her forbears ever wore a Coat, or displayed a seal, bearing Supporters ; therefore, she does not show that the family of Ardgour  ever was anciently of such dignity that Supporters were theirs of right ; (b) that she takes Supporters by succession---for her father  did not record such and did not have them in his achievement. It is not disputed on the other hand that, if she establishes representation of a family who were possessed of a Barony prior to 1587, she places herself within the category of " dignities " competent to be awarded such " exterior decorations  See the  Stewart-Mackenzie  case.[ 1922 S.C. (H.L.) 39] That latter is a question proper for the Lyon. But what is argued is, that all the other matter brought to bear on the grant of Supporters is irrelevant. I am of opinion that it is, especially since the amendments. For the important, indeed only important, bearing of the introduction of much old history, centres in these words : " She is also  entitled  to a grant of supporters as chief of the ancient family of Maclean of Ardgour." According to our decision, Chief', as a title to  bear Supporters is of right, means Chief of a full Clan, and does not mean "chef des armes." For it is now admitted that, despite her self-designation and despite her frequent insistence on such words as "Chief" or "Chieftainess," Miss Maclean does not profess to be Chief of the Macleans, or Chief of any recognised Highland Clan. There is indeed in over-late reference introduced to something called the ' Clan Eoghin ', and said to take its origin (in obscure clan histories I [647] fear) from one Allan, infeft in 1618 with a Charter from Lome, or from his grandson " Ewen " or " Eoghin " (for these are the same name) 9th of Ardgour. The new averment, however, was only tentatively supported at the Bar, by reference to a Copy Pedigree referred to in Condescendence 7 ; and that Pedigree, while it appears both parties accept it as representing the truth of the early centuries, does not contain any mention of  Clan Eoghin . I am in agreement with Mr M'Kechnie  that this very late introduction of a new "Clan"---Clan Eoghin---is totally irrelevant, since there has already been a complete disclaimer of any claim to Chiefship in the full Highland sense.

    (D) As to Badge and Standard. I see no formal incompetency in the actual warrant craved. I think however, Lyon would be well to consider briefly whether in the proved circumstances, and for the only relevant purpose, a purported right to issue to " Followers " any Badge or Standard should be inserted as a Drawing within the Margin of the Emblazonment,  i.e.,  within the bounds of the Blazon proper, in his Register---see,  e.g.,  chap. XVII of Innes's Scots Heraldry.

    (E) Finally, I come to the craves relating to Birth Briefs. Now, here, I think, the grievance was the most solid of all, and the call for amendment of the pleadings was the most imperative. The matter as it came before us was isolated in warrant (sixth), and in Condescendence 15. If the petitioner had then been content to ask for a Certificate of birth showing that birth, if she could, to be a noble birth on both the father's and the mother's side, I am satisfied that there would have been no complaint by the respondent, and no appeal on this head before us. But she was not so content. In addition to the first four lines, which would have been sufficient for the purpose, she then added 16 lines beginning with the phrase already commented on " and as such " and with that exordium she desired that in this Birth Brief she should be, as a consequence of her pedigree, described as " Chieftainess or Cean Tighe " of the house,  branch or family I have already indicate(] that, if Lyon decerned in (selecting the most obnoxious terms of this group) the terms of " Chieftainess " of a certain " Branch of Clan Maclean," it would, all over the Celtic and Gaelic parts of Scotland, nay even in the south of genealogists and historians, be held to sanction legally the establishment of a definite Branch with a right to subordinate Chiefship. She also (secondly) desired reference in this Certificate, and I suppose in the corresponding Register of Genealogies, to her ancestor as one time Coroner, and as Heritable of a Baron of Gigha, and then (thirdly) added the very significant words "(if it seem to your Lordship that Chieftainess of a, country as distinct from Chieftainess of a house or branch may . . . conform to . . . 1574 . . . be used as a descriptive term) that she . . . may briefly be described by the designation of Chief tailless of' Ardgour." Averments corresponding to these claims were made in Condescendence 15, and would, in my judgment., have involved very considerable historical inquiry , into the Ardgour muniments, and into the history of the old office of Coroner, and of Baillieries and [648] Sergeantcies of the sort mentioned, and (lastly) into the history of the Barony of Gigha and its possible connexion with the Ardgour Mansion House. Further, the averments in the Condescendence in question involved statements of very different and very difficult matters---for instance, there appears to be a claim under the same head to " a helmet befitting petitioner's degree, a crest and a motto." This was, it is true, not directly attacked, but Lyon, on the remit back without mention in these opinions, might think his jurisdiction over these matters in the issuing of a suitable Birth Brief to be affirmed. It is well to indicate with firmness that Birth Briefs are not the place for (a) determination of a claim to disputed designations, or (b) determination whether any woman can be awarded the helmet of any alleged " degree." How far objection in all these matters has been removed by amendment will be the question which next I take up.

    III. It does remain to consider how far the concession made at the bar, particularly as embodied in effective amendments, have reduced the scope of the jurisdiction proposed to a reasonable and passable ambit. The alteration did at one time seem to me substantially to cure the petition, and perhaps render it unnecessary to deal with all the points argued. I have, however, come to be of opinion that that easy solution is not open. The amendments, particularly on the crave, if they had not been accompanied by Mr Innes's able, emphatic and wide-reaching exposition of his client's attitude in law, might be treated as aimed at cutting out all the disputable matters of jurisdiction, a and of relevancy, to which I have referred. But Mr Innes was most emphatic in the opening of his later address in giving warning that his friend Mr M'Kechnie must not think that he had got too generous a concession, and he also warned us against thinking that his amendments meant all that they might have been taken to mean. I cannot regard myself as precluded or disabled from stating for the help of the Court below primarily, but also for all those interested in Highland descent, and genealogy, certain very necessary general conclusion. I shall begin for convenience, with the matter last touched on---the Birth Brief. I specifically refer to the question of Crest and Helmet. That high claim remains. The lady petitioner does not pretend to an honour from the Sovereign such as the right of peeresses, and she is not "gentleman" or "esquire." I think  the  same difficulty may be found to occur in it claim to Banner and Badge. That is not quite all as the Birth Brief, because the results  are no  more than as follows---the petitioner has indeed deleted the whole reference to "chieftainess of Ardgour" is a Suitable descriptive term to be entered in a Birth Brief. Presumably, therefore, she does not any longer claim through the Lyon recognition of such a style or title. But the rest of the matters to which I have referred are not in the same way altered. She deletes the words "as such," no doubt, but she desires that the Birth Brief should still contain the words ---Chief or Cean Tighe of the house or family." She adds " noble and armigerous " house, but deletes " branch," thereby apparently ceasing [649] to claim any particular dignity or honour as representative of a branch of a known clan. On this point I shall refer to what I say about the proper use of the word Chief in Heraldry later on. She retains, again, the averments with regard to her heritable Baillieship, the Coronership, and the Sergeantcy. In my judgment, these matters should not be passed upon by the Lyon, because they have been left isolated and, originally aimed at the claim to  Chieftainess of Ardgour, that is Chieftain of a Territory (contrary to the recognised historical basis of Clandom in kinship), have now no purpose, and should not properly enter a Birth Brief which is essentially a Register of Pedigree and nothing else.

    This explanation may, serve as an introduction to a shortened treatment of the other matters which I now take in order:---

    (A) The claim to be recorded by a matriculation as Chief Representative of the ancient escutcheon which her father recorded in 1909. The amendments are similar to those under the Birth Brief head. The words " as such " which gave good opening to the argument that the Chieftainship or Chieftainessship (to which the Lyon's jurisdiction was to extend) was something  resulting from,  and over and above, the mere matriculation of the coat, have now disappeared. The word " branch " has disappeared, and I repeat my comment upon what that deletion signified.

    There remains, therefore, now no claim to be the Chieftainess or Chief of a Branch of a clan as such. Lastly, the word " Chieftainess " has been sacrificed,  but Chief, with a capital C, has been carefully retained.

    On that question we are left in a somewhat peculiar position. On reference by question to the Judge below as to whether there was any precedent in his records for giving the Chieftainess of a minor house within a major Highland family or clan the same distinction as might appertain to the Chief of the whole clan, we are told in answer that there is no such distinction known to the office of heraldry; that Chief and Chieftain are the same, and, as I understand it, that Chieftainess is simply a convenient feminine for two words of exactly identical meaning. This view of the Lyon came, as I thought, as a matter of surprise to both parties. It is enough, in my judgment, to say that, while not necessarily to be taken as agreeing with the Lyon that the practice of Highland Sennachies, Highland Historians or Genealogists, fails to recognise a distinction between Chief and Chieftain, I am satisfied that the petitioner has (lone right in abandoning (,is I understand she doe,;) any right as a minor Chieftainess, or as minor Chieftain (the feminine form being now abandoned), to share in the Heraldic privileges of Chief of the clan. The question so answered by the Lyon in his replies is left by the argument in an extraordinary position. The parties, like myself, think that in matters regarding correct usage there is a distinction between Chief proper and head of a house who ,  originally by recognition of the acknowledged clan Chief, became localised, and in history identified as a prominent " cadent " house of the main stein, yet owning allegiance to that stem, [650] and to the one Chief himself. This distinction for over 100 years has been regarded as warranting the different and subordinate name Chieftain. While that is so, it is yet tie travesty, but the simple fact, to state that the parties' final positions before us were as follows:---Mr M'Kechnie said that the whole question of Chief and Chieftain was not cognisable by the law at all, and, therefore, was not cognisable by a Court of Arms. Mr Innes, after much debate, gave his considered opinion that lie, as a pleader, did not know what either a Chief or a Chieftain was. For my own humble part, I am bound to say that I lean to a view somewhat differing from all three. Although it may have been held in a civil cause that the revocation of the old statutes referred to by your Lordship which placed responsibility on Chiefs of clans for the conduct of, and the production in judgment of, their Clansmen, and (1 presume) the disarming and the temporary regulation of the clothing of the Highland clans for a decade or two after 1745, had, as it were, eliminated clanship from ordinary civil or statutory law, I am unable to think that that can be true of the Law of Honours. The fact, which is admitted, that Chiefship by a very old claim carries an equal right to supporters as does a patent of peerage, seems to me to exclude that narrow idea. Similarly, from that and various expositions of Honour and Dignity in Scots Heraldry, I am unable to accept as sound Heraldic Law Mr. Innes's latest suggestion that Chiefs are something so vague that we cannot say what the word means. I repeat the same of " Clan." In those circumstances, I think we are at liberty, and that we ought to decide as we propose to do, that the privileges which by the usage of arms have effeired to Chiefs of Clans are not now claimable by all who endeavour, without severing their branch from the clan, and without disputing their social allegiance to the Chief of the clan, to make pretence to Heraldic Honours suitable to Chiefs. It seems to me that this decision of ours alone will save the parties much time and much expense.

    The remaining alterations are to insert the words " noble and armigerous" before house or family, have nothing to remark on that except that I do not think precedent supports the view in a matriculation of old arms that an insertion of the affirmation of "nobility" in the house, or the designation of a house as " armigerous," in the entry as authorised, is usual and good practice. The argument of Mr Innes was no doubt powerful, that all bearing of arms was the badge of nobility, and, therefore, that anyone having Aims, (" having  ancient  Arms at least," was what he said) was presumed to be noble. I am unwilling, however, in view of the modern practice of granting arms in respect of outstanding Specific legal or literary services and such like, and of course only to people who, in the opinion of the Lyon, are fit to bear Heraldic Arms, to affirm that a grant of arms necessarily imports nobility in the grantee. One, therefore, suggests merely to Lyon that he should carefully consider whether, contrary to apparent practice, the house should be,  or needs to be, so designated.

    The last remark is this---the words "representative of', head [651] of, and chief of " are yet retained, and the crave finishes---" If your Lordship thinks proper, Chief of the name and arms." Now, here conies the crux of our decision. I am quite satisfied, as has, I think, been indicated, that in disputed cases short of Chiefship of a Highland Clan, the Lyon has no right to decide between the claims of two Chiefs as  such, and in the case even of Chiefs of a Highland Clan I think his jurisdiction is limited to the question, as  to which alone the point has relevance, of a right to a grant  de novo  of supporters in any form ? I do not, of course, agree in the least that the question of supporters is one entirely in an open discretion of the Lyon. But then Mr M'Kechnie accepts the three words " Representative," Head " and " Chief," on the footing that it is understood that the word Head" or " Chief," as used here, carries no dignity, social or other, further than would be imported by the finding of the Lyon (if such be the petitioning lady's luck) that she is entitled as against her opponent to the principal or undifferenced arms. That would involve, of course, that the respondent, her opponent, if entitled to use the arms at all, would be bound to apply for, obtain, and use, a " congruent difference."  Vice versa,  if the heir male be preferred, the lady would at least require to accept a similar " difference."

    It was very difficult, seeing that Mr Innes occupied a large part of his speech in defending the jurisdiction of the Lyon to decide as to Chiefship proper, to be sure whether, if he got the warrant (Second) which he asks, his client would not propound upon it higher claims than the above. I think, therefore, the most important of our functions is to make it plain to all interested that we pass the altered warrant as suitable for the Lyon's consideration, upon the view that Head and Chief in the present collocation means and expresses no more than the French chef du nom et des armes d'une famille.

    (B) Not much remains, I think. The other amendments, although in the condescendences certain things have not been deleted which might well have been deleted, seem to remove from us any claim to such designation as Chieftainess of Ardgour. Accordingly, I do not deal with the question whether a Chiefship can ever be competently described as one of a bounded territory in the Highlands, or can be of such local or territorial designation throughout all varying historical developments, retained as attached to the principal " messuage." This interesting archaeological inquiry is taken away from our cognisance, as it seems to me, by the abandonment of this designation.

    (C) With regard to the deletion of the word " Branch " I sympathise with Mr M'Kechnie's last address in thinking that certain of the averments, now added or still retained, are not quite consistent with the admission that Chiefship of a Branch will not do. In particular, while not proposing to delete the reference, I think the sudden and unexplained introduction of a reference to the supposed Clan Eoghin which I have mentioned can have no relevance at all unless  the petitioner were to support her alleged rights by suggesting and asking the Lyon to hold proved that from about the end of the 17th century a separate [652] clan of that name had emerged into full recognition and was now an acknowledged and separate Highland Clan. There are no suitable and relevant averments. I think the reference back should not allow of this matter being raised and taken any farther.

    (D) As regards Supporters, I do not think anything additional requires to be said here. There is no alteration in the crave of the petition as regards Supporters. I think, however, it is well, in remitting the case back for proof, to point out for the Lyon's special consideration  (a) that the claim to supporters stands on its own footing; it has nothing whatever to do with the arms of the Petitioner's father, nor is there any averment that the armigerous family in question ever obtained the recognition of supporters at any stage. Hence (b) the Petitioner's right to have supporters assigned to her must rest on some special ground which requires to be proved to him. (c) I think it ought to be said that in the view of this Court a proposition, tentatively broached, that the Lyon as representing the source of honour is open to give sup. porters to  all and sundry  in his own discretion cannot at this time of day be passed. In the important case of  Stewart Mackenzie v. Mackenzie of Allangrange ,[ 1922 S.C. (H.L.) 39] that claim was put forward by the then Lyon King---see House of Lords Book, at p. 168 D. While the reported judgments perhaps did not require and do not contain any specific findings, I am satisfied that this Court and the House of Lords were firmly of opinion that that unfettered discretion does not exist. Lord Sands says (1920 S. C. at p. 803): " There are certain classes of persons whose right to supporters is supported by constant and uniform usage." Then he says later: " I am not prepared, however, to affirm that the power of Lyon to grant supporters is limited to cases of absolute right, and that there may not be cases where . . . he may exercise a discretion." But the question left open is challenged here, and I am in agreement with the reasons given (and with the conclusions reached) in Stevenson's Heraldry in Scotland, pp. 87 to 89. Thus : "To persons of all other than the descriptions already mentioned, supporters can be granted only on special Royal Warrant." All the Scottish books on Heraldry, including Stevenson op. cit. 88-89 and the last, viz., "Scots Heraldry" by Thomas Innes, seem to make it plain that there are five regular and one exceptional grounds for the very special honour involved in having supporters to the escutcheon: (1) Ancient user---that is a very long uninterrupted descent ; (2) Rank in the Peerage ; (3) Chiefship of a clan proper: (4) Minor Barons entitled before 1587 to sit in Parliament ; (5) Knighthoods or Commandership of the Kingly Orders, like the Thistle---of these Orders His Majesty is Sovereign ; (6) Certain very special merits or services such as perhaps legal service to the Sovereign or high literary merit. It may not be possible to affirm that this list is an absolutely closed list, but I do suggest it as suitable to be now laid down as a question of Heraldic Law, that  any  future extension of those categories [653] must be very special and founded on some claim to a dignity or worth, which is of the same or like nature to the six categories. Supporters ought in law not to be scattered freely and widely. They in the language of Honour specify to all interested a very high dignity.

    The proper method, I suggest, will be, while recalling the interlocutor of the Lyon (and especially in so far as it repels pleas to jurisdiction and competency) to allow a proof before answer of the parties' amended pleadings, under express reference to the views in the Law of Heraldry which are expressed in our present opinions.

    LORD WARK.---The first plea argued to us was that the petition is incompetent in respect that it is signed, and the petitioner represented, by a herald. The plea, as stated, does not, in my opinion, raise a question of any substantial importance for, immediately upon its being taken, the petition was signed by another counsel, who has also appeared in the subsequent proceedings. In my opinion, the plea was rightly repelled by Lyon. The argument on the plea was also presented to us in the form of an objection to Mr Innes, who holds the office of Albany Herald, being heard before this Court upon the petition. I agree with your Lordship that the objection is not well founded in law. There is no instance of a counsel who was also a herald before 1867. But, whatever might have been the position of such a person before the Act 30 and 31 Vict. cap. 17, I am of opinion that that statute, as interpreted by the practice of seventy years, confines the jurisdiction of the Lyon Court to Lyon alone ; and that a herald is not a member of the Lyon Court and has now no judicial functions. I agree with your Lordship that, even if it be the case that the services of heralds may be utilised by Lyon for the purpose of investigating and reporting to him on matters incidental to a grant of arms, that is not a good reason for objection to Mr Innes appearing as counsel in this case in which, we are informed by Lyon, his services have not been utilised in any capacity ; and that there is no ground of statute or of public policy for excluding Mr Innes as a member of the bar of Scotland from the right of audience in this, or the Lyon, Court in this case. In particular, it does not appear to me to be a ground for denying counsel the right of audience that he happens to be holder of an appointment which gives him a special opportunity and inducement for exercising skill and learning in the subjects with which the Court is accustomed to deal.

    The other pleas upon which we heard argument were the second and fourth, which are directed to jurisdiction and to the relevancy of the petitioner's averments. As the petition was originally presented, it afforded ground for a number of contentions on the part of the respondent upon which we heard a lengthy argument. But the area of dispute has been greatly narrowed by the amendment made by the petitioner,

    upon the second and sixth heads of the prayer of the petition. As originally framed, the petition appeared to me to go beyond the question of representation in arms. In the second head the [654] petitioner sought to have it declared that, being heir of line and representative of her father, she was, as such,  head or chieftainess of house, branch or family of Maclean of Ardgour. This, in my view, a crave which is at least capable of being construed as one to have it determined and declared by Lyon that she is chieftainess of a branch: of a Highland clan; and there were various passages in the petitioner's condescendence---to which your Lordships have more  particularly referred---which  appear to me also to have been directed towards sue a conclusion. It was not disputed by the respondent that Lyon might' take into consideration the question whether the petitioner is the acknowledged chief of a Highland clan incidentally to a petition for the grant of arms with supporters. The petitioner does not claim to be chief of the Clan Maclean. She admits that the chief of that clan is' Maclean of Duart. It was argued, however, that there is no precedent for the determination by Lyon, either substantively by way of declarator or even incidentally to a grant of arms, of a disputed question as to chiefship of a clan or chieftainship of a branch of a clan as distinct from the chiefship or headship of an armigerous family.

    The petitioner, by her amendment, has deleted the reference to "chieftainess" and to "branch" in the second head of the petition and now claims only to be matriculated as lineal head and representative of the noble and armigerous family of Maclean of Ardgour, and as head of that family and chief of the name and arms of Maclean of Ardgour; that is to say, she claims her father's arms, not derivatively as his daughter, but substantively and undifferenced as his heir according to the law of arms and as head of the family of Maclean of Ardgour. The main controversy between the petitioner and the respondent is whether the petitioner as heir of line, or the respondent as heir male, is entitled to the principal arms matriculated by the petitioner's father ; a question which, as pointed out in the case of Cuninghame, [(1849) 11 D. 1139] and later by Lord Dunedin in the case of  Stewart  Mackenzie [1922 S.C. (H.L.) 76 [sic!] ] is  still unsettled. The respondent does not dispute that Lyon has jurisdiction to determine that question. Nor does he dispute that Lyon, in the event of his deciding in the petitioner's favour, is entitled to enter in the Register of Arms a description of the petitioner substantially as now claimed. The expression "chief of the name and arms" is one which is well recognised in heraldry. English equivalent of the French term nom et des armes.  The respondent wishes, however, to have it made clear that, in so deciding. Lyon is not entitled to enter upon the question of chieftainship of that branch of the Clan Maclean known its the Macleans of Ardgour. I should point out that, in connexion with the questions raised in the second head of the petition, the petitioner's counsel disclaimed any intention of leading evidence. of territorial recognition of the petitioner as a, chieftain. I note, however, that condescendences 2 and 9 of the record still contain averments to that effect; and that, in the, instance of the petition, she is still described as chief[655]tainess of Ardgour. In my opinion, in view of the amendment of the crave of the petition, these averments and any others which bear upon the question of chieftainship are now irrelevant to the issue between the parties and should be excluded from probation.

    The sixth head of the petition as originally framed was also objected to The petitioner has now deleted the claim to have entered in her Birth Brieve her description as chieftainess of a branch of a clan and as chieftainess of a territory. She still retains, however, under that head, a claim to be described as Cean Tighe. That term is objected to by the respondent for the reason that, in his view, it may imply something more than the English terms claimed, which are Representative and Chief or Head of the noble and armigerous family of Maclean of Ardgour, and may involve the same question of chieftainship to which he objects in the second head of the petition. I should observe (1) that the description to be entered in the Birth Brieve does not seem to me to have any necessary connexion with the designation to be assigned by Lyon to the petitioner in the event of her succeeding in her claim to arms---(as I understand the matter, the Birth Brieve is, and ought to be, nothing more than a record of genealogy or pedigree; and I agree with Lord Mackay that a claim to a birth brieve ought not to raise questions of legal claim to heritable offices) ; (2) that the introduction of Gaelic terms into an application in the Lyon Court, whether it be an application for arms or for a Birth Brieve, appears to me only unnecessarily to confuse the issue. No instance was cited to us of the use in the Lyon Register of the Gaelic language, even in the case of Highland families. The term in question may have a local significance which is different from the significance attached to the English terms to which it is supposed to correspond. I think a great deal of confusion might have been avoided, and much of the lengthy argument we have heard in this case might have been unnecessary, if the petitioner had been content to use terms whose significance in the law of arms is well known and definite ; and I have Do doubt that Lyon, in assigning a designation to the petitioner and a description in her Birth Brieve, will keep these considerations in view.

    The only remaining question between the parties at this stage is whether, in considering the petitioner's claim to have supporters added to the arms matriculated by her father, Lyon is entitled to take into consideration any wider issues than in considering the claim to the principal arms. AS I understand the judgment appealed against, Lyon does not so suggest. He says that the arms to be recorded for the petitioner will depend on whether she can establish that she is (a) a Highland chief or chieftain (which she does not now claim) or head of a family ; or (b) the representative of a minor baron who was entitled to sit in Parliament before 1587. When I look at the petitioner's averments directed towards the claim for supporters (which are contained in Article 1:3 of her condescendence), I find that she claims as heir of line and representative of an ancient baronial family in respect of the Barony and jurisdiction of Ardgour; and that, since her house has been a [656] distinct family of ancient standing, extensive territories and numerous membership at a remote period, she is also entitled to a grant of supporters as chief of the ancient family of Maclean of Ardgour. Reading, as I now do, the word chief as meaning head, I find in these averments, and in the fourth head of the petition, no question raised of headship of a clan or of a branch of a clan, but only headship of a family. So read, I have no doubt that the petitioner's averments upon this branch of her case are relevant and that Lyon has jurisdiction to consider them. In my opinion, he is entitled to consider, in connexion with the grant of supporters, not only whether the petitioner is head of a particular family, but the history of that family and whether it has been a distinct family from ancient times. The question of grant of supporters is one for the discretion of Lyon. I agree, however, with Lord Mackay that that discretion is not an open one, and that any extension of the five categories of persons mentioned by him to whom Lyon may grant supporters is not lightly to be entertained. The grounds put forward by the petitioner as above interpreted are, in my opinion, such as Lyon is entitled to take into consideration in determining whether supporters ought to be granted.

    I have hitherto confined myself to a discussion of the issues which are raised by the petitioner's averments as now amended. But, in view of the elaborate argument addressed to us, and especially of the claims made by Mr Innes as to the extent of Lyon's jurisdiction, unnecessary as they were to his main argument, I feel, with your Lordships, that it is necessary to express my opinion upon the question of Lyon's jurisdiction to determine a question of disputed chiefship of a Highland clan, or chieftainship of a branch thereof. The anxiety of the respondent to exclude from Lyon's consideration any question of chieftainship of the Macleans of Ardgour as a branch of the Clan Maclean is accounted for by the desire, should he fail in his opposition to the grant to the petitioner of the principal arms of her father, to preserve his claim to this chieftainship which, in the view of both parties, has a real existence as a social dignity, although, as the respondent argued, it is unknown to the law and has no patrimonial or armorial significance. It may very well be that the mere fact that the petitioner is a woman would be an effectual bar to her acknowledgment as a Highland chieftain. Moreover, the fact that a person bears arms which are not those of the chief or head of the clan is no obstacle to his being acknowledged ,is such chief. The two things are not necessarily coincident ---see  per  Lord Sumner in  Stewart Mackenzie v. Fraser-Mackenzie . [ 1922 S.C. (H.L.) 39, at p. 51] In my view, the interest of the respondent to preserve this claim has been sufficiently met by his success in obtaining, through the petitioner's amendment, the deletion from the prayer of the petition of all reference to chieftainship of a branch of a clan or of a territory. That matter is not now before us; nor, in my view, should it come before Lyon in any way, either in connexion with the grant of [657] arms or of supporters or the birth brieve.  I agree with your Lordships that Lyon has no jurisdiction to entertain a  substantive declarator of chiefship of a Highland clan, or of chieftainship of a branch of a clan. No instance of such a declarator was cited to us. The case of  Cameron of Lochiel , [ 24th February 1795, Lyon Register, i, 567] is not, in my view, such a case. Nor is the case of Clan Chattan  [Nisbet, System of Heraldry, 1742, vol. ii, App. p. 48] nor of  Innes , [ 14th December 1698] nor of  Drummond of Megginch. [ Lyon Register, vol. i, p. 456] In the case of  Macrae [ 22nd April 1909, Stevenson, Heraldry, ii, 465] Sir James Balfour Paul observed : "I am not here to try the question of chieftainship. I am here to try the question of arms. I have really no jurisdiction in the question of chieftainship." It appears from his note that he was referring to chiefship of a clan by itself and not as incidental to a grant of arms. The question of chiefship of a Highland clan, or chieftainship of a branch of a clan, is not in itself, in my opinion, a matter which involves any interest which the law can recognise. At most, it is a question of social dignity or precedence. In so far as it involves social dignity it is a dignity which, in my opinion, is unknown to the law. It was decided in the case of  College of Surgeons of Edinburgh v. College of Physicians of Edinburgh ,[ 1911 S. C. 1054] that Lyon has no jurisdiction except such as is conferred by statute, or is vouched by the authority of an Institutional writer, or by continuous and accepted practice of the Lyon Court. It may be, as was argued by Mr Innes, that the opinion expressed by Lord Johnston that the origin of the jurisdiction of Lyon in matters of arms is the statute of 1592, cap. 29, is erroneous in fact. But that, if true, does not affect the principle of the judgment. And, in my opinion, there is no practice or precedent which entitled Lyon to decide a question of disputed chiefship or chieftainship, either by itself or incidentally to a grant of arms. There is direct authority, by way of precedent, for Lyon considering an acknowledged chiefship of a clan as incidental to a grant of arms with supporters. The case of  Macnaghton  [13th January 1818, Lyon Register, vol. ii, p. 172] is a case of that kind. But it is a different thing altogether to say that in a case of dispute Lyon has jurisdiction to determine and declare who is chief. For that no precedent has been cited to us. In my opinion, it is outwith his jurisdiction to decide because (1) at best it is a question merely of social status or precedence ; (2) this social status is not one recognised by law; and (3), and, most important of all, it depends, not upon any principle of law of succession which can be applied by a Court of law, but upon recognition by the clan itself. Like your Lordship, I am at a loss to understand bow any determination or decree of Lyon ever could impose upon a clan a head which it did not desire to acknowledge. " It is a sound rule," said Lord President Inglis in  Fraser v. Fraser and Hibbert,  [(1870) 8 Macph. 400.] "that no Court should arrogate a jurisdiction which it cannot [658] effectively exercise." If one goes back to the time when chiefship of a Highland clan was part of the system of local government and was recognised by law as such, it is, to my mind, little less than grotesque to suggest that the chief could be effectively designated and appointed by decree of the Lyon Court. And I see no reason to think that there is any wider power in Lyon now that the law no longer recognises any such office.

    All the considerations to which I have adverted with regard to chief. ship of a clan appear to me to apply to chieftainship of a branch of a clan. Moreover, there is this additional consideration that there is no precedent whatever for Lyon deciding such a question, or taking it into consideration in connexion with a grant of matriculation of arms. Like your Lordship, I desire to reserve my opinion as to whether even an acknowledged chieftainship of a branch of a clan is relevant to a claim for supporters. My present impression is that it is irrelevant inasmuch as it introduces a new, and minor, class of dignity, different from any of those embraced in the five categories to which I have referred.

    I agree in the course suggested by your Lordship.

    ON 16th July 1937 the Court pronounced the following interlocutor :---"The Lords having considered the record in the appeal, productions and whole process, and having heard counsel for the parties, recall the ... interlocutor of the Lord Lyon King of Arms dated 16th October 1936 in so far as it repels the pleas in law two and four for the respondent and appellant  ; quoad ultra  affirm the said ... interlocutor, remit back to the Lord Lyon to take a proof of the respective averments of the parties on record as amended and so far as now referable to the amended conclusions of the petition, but excluding therefrom all questions relating to the chieftaincy of the Macleans of Ardgour and relating to the positions of the petitioner and the respondent (appellant in this Court) relative to the chief of the clan Maclean or to their relative places within the clan or branch of the clan, and decern " ; &c.
     

    Second Advising (27 March 1941)

    At advising on 27th March 1941 :-

    LORD JUSTICE-CLERK (Aitchison).---These appeals raise a question of disputed succession to the principal arms of Maclean of Ardgour. They arise upon competing petitions presented in the Lyon Court by the heir male collateral and the senior heir female of line respectively, the question being -vi,hich of the claimants is entitled to bear the coat of arms undifferenced that belonged to the late Alexander John Hew Maclean of Ardgour, who died on 27th May 1930. Ardgour had no son. The senior heir of line is his eldest daughter, one of five heirs portioners, Catriona Louise Maclean of Ardgour. The heir male is a cousin of the late Ardgour twice removed, Lieutenant-Commander Henry Maclean Hugh  of Windhover, Bursledon, Hampshire. The Lord Lyon has disallowed the claim of the heir male and preferred the female heir of line. [His Lordship here quoted the interlocutors pronounced by the Lord Lyon on 19th December 1938, supra., pp. 661-2 and 664, and continued]---The heir male appeals against both interlocutors, maintaining that as heir male he is head or representative of the family of Ardgour and is entitled as Maclean of Ardgour to matriculate the undifferenced arms matriculated by the late Ardgour in 1909. The petitions under appeal, although not formally conjoined, raise the[680] same question of armorial succession. The grant of supporters to both claimants is not challenged by either party.

    The arms annulled and reduced by Lyon by the second interlocutor above quoted were granted to the appellant as heir male on 20th February 1933, nearly three years after Ardgour's death. They are not the arms borne by Ardgour, to which the appellant at that date had made no claim. The claim of the appellant to the arms of Ardgour emerged only after the dispute between the parties had arisen as to which of them was entitled to the hereditary chiefship of the Macleans of Ardgour. In the former appeal from Lyon this Court decided that chiefship or chieftaincy was not a legal status justiciable in a Court of Law, but had the character only of a social dignity without legal status, and the Court would no more determine it than it would a question of precedency. The right of succession to arms stands in a different Position. It is a right of property, recognised as such by subsisting statutory enactments, and it falls to be determined in accordance with the law of heraldic succession.

    The arms of Maclean of Ardgour were first recorded in Lyon Register in the matriculation in favour of the late Maclean of Ardgour dated 20th July 1909 as follows  Quarterly, first, Argent, a lion rampant Gules, armed and langued Azure; second, Azure, a, castle triple towered Argent, masoned Sable, windows portcullis and flags Gules; third, Or, a dexter hand couped fesswise holding a cross crosslet fitchée Azure ; fourth, Or, a galley, sails furled oars in saltire Sable, flagged Gules, in a sea in base Vert a salmon Argent; Above the shield is placed a, helmet befitting ,  his degree with a Mantling Gules doubled Argent and on a wreath of his liveries is set for CREST, a branch of laurel and of cypress in saltire surmounted of a battle axe in pale, all proper, and in in Escrol over the same the Motto 'ALTERA MERCES.' " There is no evidence of an original grant of arms although every matriculation proceeds on the assumption that a grant was made---but it is not disputed that the Macleans of Ardgour have borne arms from time immemorial. Five separate coats are known to exist, including the arms preserved on the family tombstone in the churchyard of Kilmore, which are assigned to the year 1672, and  which are offered by Lyon to the appellant. Whether arms were ever conferred on Ardgour, or were simply assumed 'without authority as frequently  happened both before and after the Act 1592, cap. 125, there is no means of knowing. No document of rant is known to exist, and the terms of a presumed grant cannot be supplied. The matriculation of 1909 is the only entry in Lyon Register, and, conform to the usual practice in matriculations, it does not disclose any destination. Thus there arises a pure question of heraldic law :-In the absence of a destination, is the descent of arms, where there is no heir male in the direct line, to the female heir of line or to the heir male collateral ? That. has long been regarded as it moot point in the law, which hitherto has remained undecided.

    There are two competing theories of armorial succession. One, [681] which the appellant maintains, is that from the origin and the history of arms, and their nature and purpose -which is to distinguish families, the only inference to be drawn is that they pass to the heir male as the proper representer of the family. The other, which the respondent maintains, is that arms are simply heritable rights that began and grew with the feudal law, and that, where there is no known destination, they descend in accordance with the ordinary rules of feudal succession. An intermediate view was propounded by Lord Jeffrey in the case of Cuninghame v. Cunyngham. [(1849) 11 D. 1139, at p. 1151] He said :-"If I may be permitted to take a common sense view I should say that there is neither an inflexible rule nor a uniform practice in the matter. There may be cases in which the heir of line will exclude the heir male, and there may be cases where the converse will be held. In my opinion the common sense rule is, that the chief armorial dignities should follow the more substantial rights and dignities of the family. If the heir male succeed to the title and estates, I think it reasonable that he should also succeed to the armorial bearings of the head of the house. I would think it a very difficult proposition to establish that the heir of line, when denuded of everything else, was still entitled to retain the barren honours of heraldry. But I give no opinion upon that point."

    The best solution of the problem thus presented would have been found in the practice of Lyon Court if a uniform practice had existed, which might have furnished a sure guide in determining the proper rule of succession. Unfortunately, there has been no uniform practice. Destinations of arms are sometimes to the heir male, and sometimes to the heir of line, sometimes to descendants generally, in the older phrase to " posteritie." Where the destination is unknown, there has been no invariable rule of succession. According to Sir James Balfour Paul in his report in the case of Stewart Mackenzie [1920 S. C. 764, at p. 776.] : " In practice, each case has been judged on its own merits." Different Lyons have expressed different views, and the same absence of unanimity is to be found in judicial opinions. In the Cuninghame I case, where it was unnecessary to decide the point as the succession was regulated by a private Act of Parliament, the Lord Ordinary (Robertson) inclined to the heir of line. In the Inner House, the Lord President (Boyle) and Lord Mackenzie declined to express an Opinion upon the succession at common law. Lord Fullerton would not commit himself to either view. Ile said (at p. 1150) :-" I am by no means prepared to assent to the proposition so broadly   laid down by the advocator, that in every case in which the holder of such honours dies, leaving a collateral heir male, and a daughter or daughters, his heirs of line, the honours will go to the daughters and their descendants, and that the heir male will take only under a brisure or mark of cadency. Speaking with all due diffidence on such a mystery, I must say that the cases put and referred to by the advocator, do not by any means bear out that proposition. He has [682] put the case of a peerage going to a. female, the heir of line, or of the descent of a territorial possession on a female, the heir of line, and asks whether, in such circumstances, the heraldic distinction would not go to the heir of line, though a female to the exclusion of the heir male I think it is quite possible, that in such cases the Lyon Court would award those armorial distinctions to the heir of line ; and the cases referred to are instances of that being done and acquiesced in by the heir male.  But to test the general principle so broadly laid down, one must vary the circumstances, and suppose that the peerage, or family territorial possession, went to the heir male. Could it be maintained, that in that case the Lyon Court was bound to award, and did in practice award, the armorial bearing to the heirs female, the heirs of line, and grant them only under a mark of cadency to the heir male, practically the representative of the family ? " In this passage Lord Fullerton indicates  an opinion that is scarcely distinguishable from the common sense view of Lord Jeffrey that there is neither an inflexible rule nor a uniform practice, and that the determining consideration may be--- In whom are vested the substantial family rights and possessions ?  Whose is the inheritance ?

    Looked at historically, there call be, I think, no controversy, that ensigns armorial had their origin in feudalism as a military system. While the claim is made that they go back to a more remote civilisation -one very learned doctor even assigning their origin to the Garden of' Eden---arms in the accepted modern sense were introduced into Scot land at a date not earlier than the middle of the 12th, or the beginning of the 13th century. Whether the first ensigns armorial were awarded by the Prince to mark exploits in the field, or were simply assumed by leaders at their own hand as distinguishing marks on shield or banner, is a question for historians, but that they arose out of military adventure and achievement in stubborn times and the days of chivalry is, I think, now a generally accepted conclusion.  In these early times of turbulence, and strife, the inheritance of arms would fall naturally to the heir male. The same was true of land held on feudal tenure. Originally, the feudal law excluded females from the succession. It was only as the law developed and the military character of feudalism came gradually to be modified, until finall ' v it disappeared, that the right of the nearer female to inherit in preference to the remoter male came to be established and the descent is-as recognised as being to the heir general. Keeping in view this evolution of the feudal law in land tenure, -which -was for long linked up with military service, the historical argument for the heir male from the military origin of arms loses its cogency, and can scarcely be said to lead anywhere, unless we are to assume that the law of arms remained static, and that it continued uninfluenced and unmodified by the widening  conceptions of succession that came step by step to permeate and ultimately to prevail in the sphere of other heritable.  An assumption of this kind seems to me to be at variance with the incontestable fact that, by the heraldic law of Scotland a -woman may now carry arms in her own right.
    [683]
    Sir George Mackenzie, the greatest of our heraldic writers, declares in his Science of Heraldry (at p. 2) that " arms did begin and grow with the feudal law." He discusses their transmission in relation to entails in a passage to which I shall more fully refer hereafter, and which seems to me to give strong support to the heir of line. In another part of his work, he says (at p. 70) that " no man can bear his mother's arms," but lie is there not dealing with transmission through an heiress who takes in her own right, which may raise a different question from the case where the female's use of arms is by courtesy only. Nisbet in his System of Heraldry does not discuss the question, but takes it for granted that, failing an heir male in the direct line, the inheritance falls to the heiress. Seton in his Law and Practice of Heraldry says (at p. 356): " In the absence of any very distinct authority on either side, it does not appear unreasonable to argue from analogy, and to adopt the guidance of the common law of Scotland which regulates the succession to lands and dignities . . . Although we originally entertained a pretty strong opinion in favour of the heir male we must candidly acknowledge an increasing tendency to the opposite conclusion. . . . The representation of an ancient family is regularly transmitted from father to son for many generations, but at length, through failure of direct male issue, a female becomes the heiress of line, while a remote collateral succeeds to the position of heir male. Is it contrary to reason and common sense to prefer the former in the succession to the principal heraldic honours ? " Stevenson [Heraldry in Scotland, ii, 353] agrees with Seton in this opinion, but both writers also show some favour to Lord Jeffrey's view that the armorial dignities go along with the more substantial family rights. Balfour Paul,[Heraldry ,  in Relation  to  8cotfish History  and Art, p. 75] while conceding the right of the heiress to bear her father's arms undifferenced, inclines in the matter of transmission to an opinion in favour of the heir male. This was also the view of Tait, Lyon-Depute, in his report to the Commissioners.[Printed in Heraldry in Scotland, by J. H. Stevenson, ii, 457.] Burnett's view is that " heritages of all kinds, including alle lands and honours, descend at common law to heirs of line, not heirs male." [The Red Book of Menteith Reviewed, p. 49]

    In this state of conflicting opinion the question arises :-Is there any principle of universal application by reference to -which the descent of arms can be determined ? Family arms are admittedly feudal heritage. Is there anything inherent in them, or the purposes for which they are devised, that should exclude them from the ordinarily accepted rule of devolution, that heritable rights in the absence of a destination pass in the direct line to the heir in-ale, whom failing to the heir female of line ? The contentions of parties upon this issue, which was the main question argued, consisted largely of assertion and counter assertion buttressed on each side by obscure documents as to the meaning of which counsel were in violent disagreement, and [684]
    which, in the absence of explanatory evidence, are for the most part, utterly unintelligible. So leaving the documents aside, the case for the appellant, if I understood it aright, was based on the considerations that were formulated by Lord Sands in the case of Stewart Mackenzie.[1920 S. C. 764, at p. 795]'These observations were not essential to the judgment, nor were they approved of in the House of Lords, but it is unnecessary to say that they are entitled to very great respect. Lord Sands favoured the view that the descent of arms is to the heir male. He regarded this as in accordance with heraldic principles. Were it otherwise he says (at p. 796), " undifferenced arms would be constantly jumping across from one family to another, and arms would altogether lose their distinctive character as family marks." I read this as meaning that, if transmission is permissible through the heiress of line, the undifferenced arms would readily pass out of the family, as the children of the heiress would belong to the family of her husband and would bear his name, and the family arms would thus become vested in someone who did not bear the family name. This is the main argument in favour of the heir male, but on the other hand there are certain other aspects of the matter to be considered. Lord Sands was thinking only of transmission through the heiress, and it is with reference to that that his observations must be read. The question whether the heiress can transmit the family arms undifferenced to her descendants, where the husband belongs to another family and has not become a member of the heiress's family by adoption or the assumption of her family name, is not necessarily the same question as whether the heiress has the sole right to bear the family arms undifferenced in her lifetime. Lyon has treated these as separate and distinct questions, and has declined to pronounce upon the question of transmission before it arises. That was a course which I think he was entitled to follow. Transmissibility may depend upon many circumstances which cannot now be foreseen.

    The practice of entailing arms to the grantee and a specified line of heirs is not without some bearing upon the question. It is a common feature in entails of land to provide that the heiress shall marry someone who either bears the family name of the entailer, or who shall assume the family name and arms. The lawfulness of conditions of this kind has never been called in question and is recognised by all the heraldic writers. I quote this authoritative passage from Sir George Mackenzie [Science of Heraldry, p. 70]:--- It, is most ordinar in Scotland to tailye estates to the eldest heir-female, she marrying one who shall bear the name and arms of the disponer's family ; but whether the person who marries that heretrix or heiresse, as the English speak, may lawfully carry, the disponer's arms, according to the laws of Heraldry, wants not its scruple, seeing arma gentilitia which are presumed still to be granted to a man and his heirs, non transeunt ad extraneos ; else any man might give arms, as well as the Prince or heralds : Yet lawyers are very positive that their pactions are lawful, cl qui liberos non habet, [685] potest in alium transferre suum feudum ea Conditione, ut adoptatus nomen el arma et insignia feral ; and that because arms are given ' not only to reward the receiver's virtue, but to distinguish families, et quia adoptatus transit in familiam et agnationem adoptantis. Some lawyers do here distinguish betwixt him who is so assumed or adopted by one of his own predecessors or family (for these surely may bear the arms of the adopter), and those who were strangers before the adoption; and they conclude that these cannot have a right to the arms: And this is asserted by Hoppingius to be the common opinion of the best lawyers ; but I think it may be more justly distinguisht, whether the disposition be made to a daughter, she marrying one who shall bear the name and arms, for in that case certainly the children may bear the arms, for she was heiress herself; but if lands were disponed to a mere stranger, not upon condition that he should marry a daughter, but that he should bear the name and arms, it may be in that case asserted, that the receiver of the disposition cannot bear the arms, for that was not in the disponer's power to bestow, except the Prince consent."

    Similarly Nisbet, [System of Heraldry, vol. ii, p. 34.] who is a heraldic writer of great authority, in dealing with the marshalling of arms, after affirming the general rule that children properly carry the arms of their father and riot of their mother for they are of the father's family, adds this important qualification :-" the descendants of a daughter cannot regularly carry the paternal arms of their mother, except they be heiresses, or be allowed by those of their mother's side, who have right to dispose of the arms by way of testament or disposition, or else they be allowed by the laws and customs of the country." And to this can be added the opinion of Sir David Lindsay of the Mount, King of Arms (circa 1586) [The Buik of Cotearmouris (MSS. 31.3.20. Denmiln Collections).] :---" a lassid cotearmor is callit the cote of ane gentilIwoman having lyflod weddit to ane man having na cotearmor. Hir sone may weir hir cotearmor with ane differens of armes durying his lyfe be the curtesie of the law of armes and his sone sall beir nane. Bot giff the gentillwoman be air or nixt of blude to the cotearmor or ellis being hir byrth of the blude royall then sall hir air here hir cotearmor."

    The significance of these authoritative pronouncements lies in the recognition they give, that there is nothing in an heiress's bearing of arms in her own right that is repugnant to the conception of arms, or obnoxious to the principles of heraldry. Indeed they seem to go farther, for they recognise not only the heiress's right, but the right of the children of the heiress to bear their mother's arms, so that the right of the heiress is presented not as a mere courtesy, but as a legal right by succession and as such transmissible. That this is so, where there is a destination to heirs general, or a destination with a name and arms clause, whether in entail, marriage contract, or testament, appears to me to be incontrovertible. The question then is-What is [686] the position when there is no destination, and the matter is left to operation of the common law ?

    If this question is looked at in the abstract as a pure matter of legal theory, there may exist a certain presumption that the succession is to the heir male, a presumption which arises from the doctrine of the law that females leave their own families and pass into the families of the husbands. whom they marry. But this preference for the heir male is only a presumption, and it can weigh to no decisive effect where to apply it would involve the severance of the family arms from the substantial family possessions. The principle of the peerage law, where the limitation of a peerage cannot be discovered, that it is presumed to descend to the heir male of the body of the original grantee, was formulated by the Committee of Privileges, influenced by considerations of political expediency that are alien to any question of heraldic succession. In a peerage it is possible to presume a desti. nation, because there must have been an original patent by which the dignity was conferred.. but in arms this cannot be assumed, because both before and after the Act of 1592 individuals frequently appropriated arms without the authority of grant or other sanction, and in the West Highlands habits of appropriation seem to have been developed to an uncommon degree. None the less, I incline to the view of Lord Sands that in strict theory the presumption is for the heir male ; at any rate to this extent, that if the judgment of Lyon were held to involve that the arms would transmit to a stranger, I would have been prepared to hold that the presumption could not be rebutted. But the preference of Catriona as senior heir of line does Dot involve this consequence.

    If the matter be looked at from a common sense point of view, I would ask this question---Why should the heir male collateral who does not possess a single rood of the ancestral lands, and who has no connection with Ardgour other than descent from a common ancestor, be preferred to the daughter of the house and senior heir of line, -who as laird of Ardgour stands possessed of the baronial estate which has been the family inheritance for at least four centuries ? To this question I can find no satisfactory answer. In the case of not a few of the noble houses of Scotland, including some of the most eminent, the descent has been through the female line, and the purity of the arms is as likely to be preserved where they pass in the direct as in the collateral line ; indeed the cases are very few in which the simplicity of the original arms has been preserved. The arms may be quartered, or combined in other ways, whether they go to the heir male or to the heir of line, and there are many instances on record in which heirs male have adopted the arms of their wives in preference to their own. In any event, the question of transmission through the heir of line is not raised at this juncture. If in strict theory there is a, presumption in favour of the heir male it is, I think, sufficiently displaced by the possession by Catriona of the baronial estate, which is the chief family inheritance, in her own right. The present value [687] of the estate is irrelevant to the issue. Even apart from a territorial possession, I am not satisfied that the long descent of the arms in the direct line might not itself be sufficient to displace the presumption, where to give effect to it would involve the arms passing out of the direct line. The idea that a woman cannot represent an armigerous family appears to me to be a mediaeval notion, appropriate perhaps to ages of savagery, but having no relation to the realities of the modern world. I can see therefore no ground to preclude the Court from affirming that Catriona, as the inheritor of the ancient barony with which the family history is bound up, should be regarded as the representer of the family during her lifetime, and as senior heir of line entitled to the undifferenced family arms. This conclusion is, in my opinion, not contrary to the weight of heraldic authority, and is in harmony with the view of Lord Jeffrey, and 1 think also of Lord Fullerton in the case of Cuninghame.[Cuninghame v. Cunyngham, (1849) 11 D. 1139, at p. 1150.] The question whether the arms will afterwards pass to the descendants of Catriona without their bearing the family surname does not now arise, and is reserved. My conclusion is that Lyon was entitled to prefer the claim of Catriona, and we would need to have very clear ground before differing from his judgment. I am prepared, therefore, to find that Catriona, is entitled to bear and use the undifferenced arms of her father the late Ardgour as these were matriculated by him in 1909, and that not merely as a courtesy, but of right, and that no one can be heard to challenge her right or usurp her title.

    There is one matter only upon which I entertain a doubt. Lyon has treated the sisters of Catriona as having the same quality of legal right as herself in the family arms. This, no doubt, is in conformity with the heraldic principle that heirs-portioners take equally without differences. While this is not open to dispute where the right of the heirs-portioners is a courtesy merely, it is by no means certain that the same rule obtains where the arms descend to the senior heir of line as matter of legal right. In such a case, I think the correct rule is that the senior heir of line has an indivisible right to the arms, agreeably to the doctrine of Stair that, though heirs-portioners succeed equally, " yet rights indivisible fall to the eldest alone " without prejudice to the courtesy rights of the younger sisters. This, however, raises a question between the heirsportioners -which is not hujus loci.

    Upon the whole matter I am for affirming the judgments of the Lord Lyon and refusing the appeals.

    LORD MACKAY---It may serve to shorten much which falls to be said, if one attempts here a simplification of the issues which truly lie before us at this stage. I refer for that purpose to my previous opinion.

    1. (1) We have to do, to-day, with a disputed controversy as to the succession, according to the true Laws of Heraldry, to a particular coat of arms (or achievement) which is blazoned as follows [688] Quarterly, First, Argent, a lion rampant Gules armed and langued. Azure; Second, Azure, a castle triple-towered Argent, masoned Sable, windows portcullis and flags Gules; Third, Or, a dexter hand couped, fesswise GuIes, holding a cross crosslet fitchée Azure ; Fourth, Or, a galley, sails furled, Oars in saltire Sable, flagged Gules, in a sea in base Vert a salmon Argent." There is also a reference to (a) a Crest and (b) a Helmet " befitting his degree." But Lyon has indicated that neither helmet nor crest is suitable to the lady petitioner, and this was not appealed to us by her.

    (2) The appeal has nothing to do with supporters. The Lyon has proposed by his note to give supporters with a specific coat to the respondent, but this is not to be done as one part of her supposed right in succession to a coat, granted without any such supporters in the year 1909.

    (3) The appeal has nothing to do with direct claims to any preference or aspiration to precedence within the clan (such as chiefship) except in so far as under the appropriate and ascertained law of arms proof of recognition, universal or general, within the family or clan, may be found a relevant consideration to a disputed question of succession, or (which is involved in succession) of heraldic representation of the family whose ancient user made the particular coat of significance.

    (4) Neither has the appeal to do with the issue of any birth-brief, or birth certificate. (See my previous opinion as to the origin and history of that.)

    It has to do, however, with the statement of the character in which the succession (if any) is sought by, or awarded to, the claimant. Any number of suitable examples may be taken to show that a matriculation proper-matriculation, that is, by recognising a claim to successionof achievements is now always or usually accompanied, both in the warrant and in the entry made by the clerk in consistence with the warrant, by a narrative explaining the character of the succession.

    II. There lay before Lyon, and there lie before us, two directly competing claims, both by is ay of succession, to the self-same coat of arms. That that is the case clearly appears both from the terms of the competing petitions, and from the elaborate arguments before us. Both parties, by the crave declaratory and effective of their petitions, regard the arms whose blazon 1 have given above as, " The chief arms of the house or family of Maclean of Ardgour." The petitioner Miss Catriona desires to establish explicitly-" The quality of the arms matriculated on 21st July 1909, as ' chief,' ' principal ' or 'absolute' arms of the house or family of Maclean of Ardgour "-See her finding 12. To prove the point from the second petitioner's pleadings is less easy. The document reproduced before us does not appear to be in the ordinary form of a petition addressed to the Lyon. It starts at once with condescendence I and answer 1. But, on p. 49 of print A there is a crave for, first, reduction of a certain matriculation of 1933, and then, second, for " Warrant as aforesaid to matriculate the said ensigns armorial in the said register in name of the petitioner (and of [689] his heirs male) and that as Mac Mhic Eoghainn and heir male aforesaid, and as head, chief and representative of the family of Maclean of Ardgour." The words " the said ensigns armorial " carry one back through condescendence 8 to condescendence 5 where it is the arms I have already blazoned which are expressly claimed. This petitioner says explicitly, " The late laird was apparently the first of the family to matriculate arms in. Lyon Office, which he did on 20th July 1909, setting forth that he and his ancestors had borne ensigns armorial from a period prior to the Act 1672, cap. 47." The arms so claimed as by succession are the identical arms blazoned and claimed by the earlier competing petition.

    In these circumstances we have simply before us two competing petitions for the same ancient arms, and each upon the footing (a) that the right to bear them is fortified by the ancient user of the arms of Maclean of Ardgour even prior to 1672 and (b) that each petitioner is (as he or she maintains) the true heraldic representative of the ancient family whose user is matter common to both sides of the proof. Lyon has in effect conjoined the process and has allowed one proof to the parties in both petitions. We must treat the petitions as in essence two conjoined applications for the same coat of arms.

    111. It is matter of everyday knowledge in the realms of ensigns armorial and. heraldry that there are two distinct sorts of application for registration which are easily distinguished as (a) for a grant, (b) for a matriculation of arms. It seems true that occasionally the word .' matriculation " has been allowed to be used to cover or iginal grants, but in my opinion-and as clearly disclosed by the judges in the Seaforth case, Stewart Mackenzie v. Fraser Mackenzie [1922 8. C. (H, L.) 39]the word matriculation " strictly and properly implies an application founded on right to arms recorded or ancient, whereas an application for a " grant " founds on no right, but asks for a new and appropriate achievement. This clear distinction of two forms of application runs through both the 1592 Act, and the 1672 Act. In the 1592 Act, cap. 29, the right by long succession of nobility to arms is thus recognised.  First, it lays out as a consideration, " the greit abuse that hes bene amongis the leigis of this realme . . . usurpand to thameselfs sick  arms as belangis nocht unto looms.'' This obviously involves and assumes the right to arms if they be established by proper user. The narrative proceeds significantly, " sue that it can nocht be distinguischit be their armes quba ar gentlemen of blude be thair antecessouris, nor yit may it be decernit quhat gentlemen are discendit of noble stok and linage." The reason given in 1592 was in order that, by a visitation, the nobility, lineage and right to ancient arms should be ascertained. It was only upon such ascertainment and distinguishing that the Lyon and heralds were " thaireftir to matriculat thame in thair buikis and Registeris." Similarly the intermediate  Act of 1662, cap. 53, [A.P.S. vii, 404, cap. 53] contains such expressions as these [690] Casualties and duties . . . for entering in his Book . . . with the propper Armes perteaneing to their familie, to remaine theirin. ad futuram rei memoriam." And also as follows :-" Considering what disorders and confusions have arisen and are daily occasioned by the usurpation of cadents who against all rules assume to themselffs the arms of the chief house of the family out of which they are descended, and that other mean persones who can noways derive their succession from the families whose names they bear as they have at first assumed the name doe therafter weare the Coat of that name to which they pretend without any warrant or grund whatsomever." Similar significant passages occur in the latest Act of 1672. The right of assigning newly devised arms is expressed in one
    sentence-" and may give Arms to virtuous and well-deserving persones under his hand and seal of office."

    In any dispute as to the succession to ancient family arms, it is, therefore, imperative to decide, first, whether the last entry in the register (here, in the year 1909) was an entry as of a claim of ancient right founded on user, or was itself a new grant of arms invented by the Lyon for the first time. Now, the case of both the petitioners, as I have shown, is that they are entitled to the Lyon's judgment on the footing that the arms were the ancient possession and right of ancestors back to and beyond the year 1672. They each deduce their succession in elaborate proofs of genealogy from such ancestors. See Genealogical Trees at D 64 and E 131. The Lyon treats the question thus, for in both of his interlocutors he is at pains to derive the right from proved descent. An examination of the papers relating to the warrant of 20th July 1909 shows clearly that the petitioner of that date presented his claim as a claim founded on ancient family arms and ancient user, and he did not ask for an initial grant of arms to be devised as suitable to his own status and quality. Among the findings of Lyon upon the proof are statements that he finds the identical blazoned arms in proved use at two periods long antecedent to 1909, namely ,  in 1793 on the seal of a predecessor in the entailed estate of Ardgour, an Alexander, who married in 1793 ; and again, in Burke's Armoury ,  of 1842, as " the Arms of Maclean of Ardgour" of that date. In short, it does not seem allowable to proceed on the footing that A. J. H. -Maclean, the last laird, asked for or was given a new coat. Now, it is part of the common matter submitted to us by counsel versed in heraldry, that, upon a matriculation proper of arms, it is not usual to insert any detailed destination or provision as to their subsequent descent. And so this 1909 entry is silent about heirship.

    IV. The one question for solution in this case (although as it was long in doubt it may be a difficult question) is-What is to be taken as the rule of succession to an ancient coat of arms which both parties .assume to have been the arms of the, house of Maclean of Ardgour from the time of an ancestor known to the family history as Eoghainn, which Gaelic name is Hugh or Ewen? This warrior Eoghainn may be [691] taken as the common ancestor in possession of Ardgour, and seems to me on the proof of both sides to be the eponymus of the whole clan, and his date is about 1463-1482.

    Three possible views of the heraldic law of arms in the transmission of old achievements of an ennobled family were put before us on authorities. The first view posits that in the absence of any express determination of line of descent, an armorial achievement descends according to the rule of corporeal heritage. That includes, generally speaking, preference to the male in descent over the female, but always preference to the heir of line female over the collateral lines derived from the common ancestor. And it involves elaborate arrangements in the case of multiple heirs in that case only when descent devolves upon females. In every other case there occurs a rule of preference by which one male representative receives eclectic treatment over all others. The second broad simple proposition is that, assuming similar absence of all other mode of determination, the rule is for heirs male until all possible heirs male are exhausted. In this case also, there is eclectic treatment by which one single possessor is he who becomes entitled to the use of the chief arms. These two rules, if either of them be accepted as the true rule of arms, would leave no dubiety, because their incidents have been fully worked out in ordinary charts of descent. But thirdly, between those two simple rules a supposed third has been canvassed. This rule I may call, for shortness, the Lord Jeffrey rule, because, so far as it is capable of being formulated, it was thrown out in a passage (which was perfectly obiter to the decision) by that eminent judge in the case of Cuninghame v. Cunyngham.[11 D 1139, at p. 1151.] In my judgment, the conduct of the argument by both parties, and indeed the Lyon's reasoning, make it imperative to face at last the choice between these rules.

     V. Before directly facing the large question, I must say a few words about the rather odd way in which. the two opinions below treat the question. I am personally not in the least satisfied with the reasonings in the second opinion, whereby Lyon found scope for negativing the arms which the said Henry desired, and offering in their place arms which he did not desire, -which were not put in proof by either party, and which to all appearance Lyon discovered for himself from an old tombstone on a visit to Kilmore, Quinish, Mull. These were said to be those of a " Donald Maclean, younger of Ardgour," who died in 1709. " Younger " as so used at that date meant that he was not heir or owner in possession but was only then heir presumptive. It means his father or uncle wag using the true family coat. Henry Hugh Maclean stands to the claim, and is entitled to have our judgment upon it,  that he has proved the arms blazoned at the commencement of this opinion to be  the ancient arms of the noble family of Ardgour.  and that he has a right to bear them  'There remains, however, the question of whether he is solely entitled so to be held, [692] I am of opinion that it is not so, if we are shut down to considering the lifetimes of the particular claimants or petitioners before the Lyon Court. I am inclined to agree with your Lordship in the chair that we are, although it is true that both the petitioners have strenuously desired to have a destination inserted in the matriculation defining what classes of heirs of each of them shall take. It does appear to me that, as indeed is fully admitted, the normal rule is against inserting destinations in mere matriculations. As this is nothing but a re- matriculation, we should not instruct the Lyon to insert a destination in either grant contrary to normal rule. If, however, we so restrict ourselves, then 1. think it is so much beyond argument that it wag not argued, that, if an ennobled gentleman who has (tied possessed of ancient arms is survived by a daughter or daughters, the eldest daughter may, for tier life, bear the arms which he possessed, and bear them undifferenced. Such a daughter is not a cadet or cadent of his house or of any house. She bears the arms derivatively from her father, and for her lifetime, or at least until she marry (a) into an armigerous family, or (b) with a non-armigerous husband. Since that is, and has all along been, admitted, and if we are not, consistently with our previous judgment, to deal with any claim to status within the clan, nor are to deal with the succession of her possible future family, then there seems little to object to in the form of warrant, -which the Lyon would have granted her, consistently with his first opinion. At the same time, I think a lady taking as for her husband or father should, by good practice, bear the arms upon a lozenge. In the next place, taking the view I have done, I cannot appreciate, nor do I approve of, the view of the Lyon, of bringing in Miss Catriona's sisters. I think the explanation is that he had to do so, as Mr Innes argued, because he was to a limited extent supporting Mr Innes' major argument that the law of descent in heraldry is in all respects the law of descent in corporeal heritages, and therefore that heirs female take conjunctly. In my opinion, no precedent whatsoever has been adduced for a separation of a right to bear a family coat of arms either pro indiviso or separatim among a number of junior heirs female. In any event I do not think it right, as these junior sisters were not appearing, to ascribe any force to a right in them to bear the arms differenced or undifferenced, or on a lozenge, or in any other way. If they seek to establish such a right, let them proceed to bring a separate petition.

    My last remark on the form taken is upon the finding of the Lyon :" Finds : that the petitioner Miss Catriona, &c., as heir of line of her father is entitled, severally with her sisters, to matriculate the Arms matriculated by " (tier father) " on 20th day of July 1909." That finding treats, as it were, the right of succession as merely carrying back to her father the grant in 1909 as if that was a grant which, by its own force, descended to heirs female. But on the other hand, the law of heraldry in Scotland does in ally event give Miss Catriona the right (it may be called by way of " curtesy " or by some other name) to adopt the undifferenced arms in the meantime. I say so, of course, [693] subject to the point as to the presumption being displaced, next referred to. Upon the general presumption in heraldic succession, IA shall now examine the state of authority.

    Within the last 120 years the opinion of three deceased judges occupying the position of Lyon King of Arms has been to the effect  that the rule is for heir male. I refer first to the opinion given to Parliament in 1822 by Mr Tait, then Lyon Depute.[Printed  in Stevenson's Heraldry in Scotland, ii, 459] Lyon Deputes were in those days the active administrators of this law, and he was selected to make the reply on practice to the Parliamentary Committee. His report is unhesitatingly and unqualifiedly one way. There is, secondly, the opinion of Lyon Depute in the year 1845, who, in the disputed case between Sir R. K. DickCunyngham and Mr Smith-Cuninghame, pronounced as follows [(1849) 11 1). 1139, at p. 1141.] :-" Finds that the petitioner, [Sir R. K. Dick-Cunyngham] as head and chief in the male line of the families of Cunyngham of Lambrughton and Dick of Prestonfield, would by the heraldic usage of Scotland, and the practice of the Lyon Court, have been entitled to carry the arms of these families quarterly, without brisure or mark of cadency." This judgment, although coming under review, was neither approved nor disapproved by the whole Judges in the Court of Session, because they held that a certain private statute effectively made a rule of law for the particular instance. We have, thirdly, the view of Lyon Balfour Paul, pronounced in the Stewart -Mackenzie or Seaforth [1920 S. C. 764, at p. 771] case. I was of counsel in that case. I have refreshed my memory from the revised pleadings and opinions printed in the book for the House of Lords. At the first stage, Lyon had taken a course of which neither party wholly approved. And the Second Division, with the help of both parties, adjusted a series of questions to be sent down for answer. Undoubtedly, among the questions remitted, the present question was clearly outlined. Two of the seven questions ran as follows :-Question 2. " Apart from the effects, if any, of the said forfeiture, what were the respective armorial rights, as bearing on the present dispute, of Lady Hood and George Falconer Mackenzie on the death of Francis, Lord Seaforth, in 1815?" [At p. 774.]  Now Lady Hood was, like Miss Catriona here, the senior heir of line of the last holder, Francis, Lord Seaforth, and George Falconer Mackenzie was equally admittedly the heir male in the heraldic sense. Question 3 ran:--- Whether the petitioner, as heir of line of Francis, Lord Seaforth, is entitled either alone or along with the heir male, if any, of the House of Mackenzie, to the ensigns armorial matriculated . . . in 1672-77 ? " 2 The answers are to be found on pp. 775-6 of the report of the case. The answer to question 2, as was pointed out in the House of Lords, was not a sufficient answer to the question asked, but it gave rise to a distinction which the majority of the Court accepted, between the arms of George Falconer Mackenzie, obtained by him in 1817, as [694] being " differenced " arms or as being " undifferenced " arms. The other question, the then Lord Lyon did answer. As I read it, he did, in substance, agree with the two previous Lyons whom I have men. tioned. One short sentence or partsentence was taken out of this answer and m-as read as if it meant that there was no ascertained law in the Lyon Court. The words taken out were-" In practice, each case has been judged on its own merits." For my part, I always have read that sentence as grammatically referable to the statement in the preceding sentence which bore that the question of the relative rights of heir male and heir of line " has never definitely been the subject of a, decision by the Court of Session." 1 agree that, so far as the Court of Session decisions ss-ere concerned, it had never come to a decision, and that the Court of Session had judged cases on their merits. But the Lyon went on---" But it may be pointed out  . ." and after that, the rest of the answer falls to be read as a whole. It seems to me that it does state, as familiar in accepted heraldic practice, a large number of decisions as to the right of a lady (having no brothers) both to bear her father's arms, and to transmit them but under very restricted conditions. Mr M'Kechnie was right in reading these accepted qualifications as destructive of the view that an heir of line, in the competing presence of an heir male, took in full and unqualifiedly as a member of the full destination. If she did so, then. her successors, male or otherwise, would, ill turn, take through her, in unrestricted fashion, the undifferenced coat. fix my opinion then, the then Lyon, with the most excellent reasons ill support, was against the view that the heir of line took exclusively of the heir male try arms which were not expressly destined.

    I pass from the views of Lyons to those expressed upon the judicial  bench. There is no doubt, in the Seaforth [1920 S C. 764, 1922 S. C. (H. L.) 39] case, that the question  as to presumed succession between heirs male and heirs of line was  canvassed, and with nearly all the autliorities---indeed with all the  authorities then available. The views of three judges (two in the Court of Session---Lords Sands and Dundas, and one in the House of Lords-Lord Sumner) were relied upon by Mr M'Kechnie.  He conceded (1 fear a little prematurely) that these expressions were obiter,  in the sense that they did not necessarily enter into the judgment in  either of the two Courts. All obiter proper is an expression of opinion  thrown out by one judge, which affected neither his colleagues nor, in the result, his own opinion. In this full sense I am quite clear  that the views of Lord Sands, concurred in by Lord Dundas, were not obiter dicta. It seems impossible to suppose that Lord Sands would  write a passage beginning on p. 795 and ending on p. 796, and take  the subject up again on p. 798, if the determination of the point is not in gremio of the reasons which led him to his conclusion.  I am  personally of the opinion that the question of presumption, for which class of heir, was truly decided in the Seaforth [1920 S C. 764, 1922 S. C. (H. L.) 39] case by the majority [695] of the Court, and that, while it entered vitally into the reasoning of Lord Sumner above, it was an inherent element in Lord Sands's decision. The respondents in the House of Lords case relied upon the judgments of the Lord Justice-Clerk and Lord Sands. I am of opinion that we are faced with the opinions of two very eminent judges, who took very great care both with the elaborate argument and with the return of answers by the Lyon of the time, and that these opinions were intended to, and do, support the view which I have found in the mouth of the three Lyon Kings of Arms named. I quote this as only one of several passages:-" Opinion may have fluctuated or hesitated, but in my view, both upon principle and upon authority, an entailer cannot directly or indirectly assign his family arms to a person who is not entitled to these arms as his heir. Accordingly, James Fowler Mackenzie was not in a position to assign the arms of Mackenzie of Allangrange to the respondent." [Lord Sands at p. 801] Lord Justice-Clerk Scott-Dickson inclines to the same opinion.[At p. 791] This very fully-reasoned opinion, concurred in by Lord Dundas, appears to dispose of a mass of argument submitted by Mr Innes, founding upon the supposed right to dispose by disposition for value, or without value, of all existing and unexpired coat of arms. Lord Sands further asks, (at p. 795) " What were then his armorial rights ? . . . He was heir male of the last unattainted Earl, and he was chief of the clan. In these circumstances he appears to have had right to the family arms without any mark of cadency." I emphasise that dictum. " It is true that he was not the heir of line of Kenneth, 3rd Earl, or of Kenneth, but for the attainder 7th Earl. I do not at present inquire what may be the rights in the family arms of an heir of line. But it appears difficult to hold that the heir male and head of a family is riot entitled to the family arms without some mark of cadency if he be not the heir of line." 1 refrain from quoting further, except this :-after giving a page of instances to illustrate his meaning, Lord Sands says ' :---"The only argument directed against the Lyon's opinion "-one notes that he certainly took the Lyon's opinion to be as I have taken it-" was to cite one or two alleged cases where an heir of line adopted, or assumed, his maternal arms -without the paternal quarterings. But isolated irregularities do not invalidate a general rule." I have noticed that he does not predicate an absolute law, but a. general law to which a small number of recognised exceptions may be found. The exception to which Lord Sands gives special prominence is where the arms are the arms of a peerage, and where the patent of peerage, being the higher dignity, shows an express intention to transmit to heirs of line direct, as against the collateral heir male. A word about the authority of Lord Dundas. Lord Dundas, no doubt, concurred generally. It was argued, therefore, that he could not be truly held to have adopted either the conclusion, which I have expressed, of his junior brother, or the reasonings on [696] which it was supported. I am of opinion that this argument fails. The result is that in the Second Division we have the opinions of two, judges of eminence pronounced only 18 years ago, and after a practically full citation of the authorities creating the difficulty. In the House of Lords,[1922 S. C. (H. L.) 39] I agree that nothing said by the various judges can be treated quite as I have done those judgments below as really determinative of the ultimate judgment of the whole Court. if the dicta had done so, I think we should have followed almost without more argument. But I think Mr M'Kechnie was really well-founded in taking some passages from Lord Sumner's opinion as at least weighty dicta after reasonably frill consideration of the various sides of the controversy. Discussing the position of G. G.  Mackenzie in 1817, he says (at p. 49) :-" The respondent's case is that both his wishes were gratified. As the chieftain, he, [G. F. Mackenzie] could have matriculated the ancient Seaforth arms, including the supporters, without any differencing, for he took them as heir male, and was not a mere cadet." 1 am, after careful re-reading, completely of opinion that this passage was completely of the substance. of Lord Sumner's own reasoning.

    For these reasons, I am of opinion, without any considerable hesitation, that there is a great preponderance of weight, since the Year 1822 and onwards, among the occupants of Lyon's chair, and in addition there is the weight of the authority of three very great judges, here and in the House of Lords, in favour of the view which, as will appear from the foregoing, 1 take to be the preferable solution. I would be content to rest on the great authority on matters of historical law of Lords Sands and. Dundas. But I add that my own view on principle must independently be entirely with Lord Sands both in result and in the principles of heraldic law. I therefore, agree fully with the first of the two competing theories of armorial succession to which your Lordship has referred.

     VI. I next consider what was argued for a presumption for the heir of line. With all its learning and brilliance, the ultimate submission of the pleader was that we should adopt as the established law of Scotland the view that arms, being a heritable subject, follow in all respect., the law of intestate succession in corporeal heritages, and immoveable rights equated to that heritage. The supposed authority went back to a short passage in the great Lord Stair's Institutes. It will he found at III, v, 8.  The great writer was dealing with the " classes of heirs." Of course, among the innumerable systems of law which he referred to, each dividing rights into two major classes, he had to draw the major distinction in Scotland as one between moveables and immoveables.  In distinguishing one set of rules of law from the rules of law obtainable in moveable estate, he did undoubtedly throw together in two broad categories, (first) heritage, and (Second) ---dignities,   Under the word " etcetera [697] if not under the word "dignities," it was argued, fell such appendages of honour as coats of arms and supporters, and other subordinate rights such as to a badge or a livery. I cannot think that Lord Stair advisedly thought matters like peerage rights and minor dignities and arms fell into one group, lending itself to one single law, and that a law of intestacy. It was not till about the years 1720-1760 that it was decided that the presumption in peerages and lordships of Scottish origin was for the undivided succession of the heir male in preference to all heirs of line. Whether that view of the few words of Lord Stair be a correct understanding of him or not, I am clearly of opinion that arms do pass under the same rule as dignities. The presumption is that they carried in their origin an express or implicit limitation to a " family " or " family and name " whose honour was to be perpetuated. There is no law of intestacy in dignities or in arms.

    One or two matters may be lightly mentioned which render the rules of intestacy in heritages wholly inept. There was the distinction (although now abolished) between the heritage which had descended to the deceaser, and heritage conquested by him. If one tried to apply any like rule to the grants or patents of peerages or heraldic insignia enormous confusion would have been introduced. Such confusion was never found to apply. So among female heirs of line, if there were more than one, there was pro indivi8o succession, and until steps might be taken to divide that pro indiviso right into specific portions, the representatives of each heir female continued to hold an equal and joint right with all the others. That has never been shown to have applied in arms, and it would be inexpedient to affirm it now. Of old time it was assumed that, by an inter vivos deed, an owner of heritage had the right to create a limited and entailed succession. As such succession necessarily, to be a good entail, cut off in some respect the ab intestato lines of succession, this assumes a right to determine among the heirs the preference for many generations ahead. I have quoted from Lord Sands to show that the mere possessor in succession of a family coat of arms had no right so to chop and change among his own relatives. It would be inexpedient now to pronounce such a right to be any incident of the rule of arms. The rule so carefully worked out in the special legal committees of the House of Lords by, first, Lord Chancellor Hardwick in the Cassillis I[Lords'Journals, vol. xxx, p. 144]case, 1762 ; second, Lord Chief Justice Mansfield in the Sutherland [Lords' Journals, vol. xxxiii, p. 128] case in 1771 ; and third, Lord Loughborough (afterwards Lord Rosslyn), a Scottish-trained advocate who became Lord Chancellor, in the Glencairn Peerage [1 Macq. 444] case in 1797, is the apt and preferable rule. Lord Mansfield in particular laid down the rule that, in the absence of the patent or the constitution of a dignity, it could only ,descend to heirs male ; and in the case cited, he said that the Court [698]
    of Session in the case of Simon Fraser, Lord Lovat,  in 1730 proceeded " upon a general presumption in favour of the heirs male." So at the end of that century, in the Glencairn case,' the then Lord Chancellor (Loughborough) laid down the rule in the most absolute terms " that where the limitation of a peerage is not to be discovered, the presumption is that it descends to the heirs male of the body of the original grantee."

    For these among many other reasons, I think the rules of intestacy in corporeal heritage and accessory rights are rules totally alien to. the conception of heraldry, and rules which would make confusion, and destroy the main honourable purposes of the dignity.

    As regards references to the matter made in any contested proceed. ings, thus, I have a clear vision that the almost overwhelming weight of authority is all one way. There was also, however, a very considerable excerption of passage here and passage there, from (a) the original treatise of Seton, published in 1862, and (b) the Recension of that excellent work by Mr Stevenson, published in 1914. In the latter volume, the references were all taken from chapter 12, headed, " Succession to Arms." In my judgment, many of the passages. quoted in the print were excerpted so as to obscure completely their place in the argument. The chapter lays down at the outset, and with perfect propriety, a general rule as follows:---" A grant of armorial bearings, when it is not explicitly restricted to the grantee himself, is field to be of a hereditary nature in one line of heirs, not another and creates also rights of minor degrees in other descendants of the grantee." Mr Stevenson approaches the moot question at the foot of p. 334, thus :-" The line in -which the principal right of arms descends is by no means always the same, nor easy at all times to be determined. It is sometimes laid down in the grant, sometimes it is not, or at least, not in the entry of the right in the register. Some times the terms of the grant are unknown." The remainder of the chapter to p. 354 deals si-itli these various contingencies. The immediately  following paragraph of seven lines, which was often quoted, has nothing to do with the present controversy at all. It deals with the construction in certain very  '  old cases of an old grant which had contained in the destination either the word " descendants " or the word " posterity." Following on his disposal of these special terms, the writer approaches the actual problem, posed as above, thus : " When the terms of the grant are unknown  they are to be ascertained either from the facts of the past enjoyment of the right which has beenconstituted by it, or by the aid of a presumption." Now, as I have already indicated my view, ti-lictlier one goes upon the facts of the past enjoyment of the right in the case of Maclean of Ardgour, or one proceeds by the aid of the proper presumption in law, the result here is the same. But Mr Stevenson, writing before the weighty dicta in the Seaforth [1922 8. C. (11 L.) 39] case proceeded next to the three [699] sorts of supposed presumption of which I have already spoken. As regards that which has been spoken of as the Jeffrey suggestion, this is the writer's opinion:-" This last opinion, though obviously providing a rule of conveyance for some cases, has no application where there are no substantial rights and dignities, or where they are divided in their own destinations." In my judgment that is substantially the right way of looking at this rule of conveyance. The various claims to honourable position or to the possession of the ancient ansionhouse or the like, did not, in my opinion, fall under the phrase, " substantial rights and dignities," and, moreover, none of them had a destination in the sense spoken of by Mr Stevenson. As I shall shortly show, for centuries the estate remained on a tailzied destination to heirs male. Mr Stevenson wrote prior to the Seaforth I case, and I make almost sure that, if he had had opportunity after his success in the Seaforth I case, he would have reverted to his own and personal original opinion. It is, at least, abundantly clear that neither one nor the other of those two writers adopted as his final outlook on heraldic law a universal preference for the heir of line.

    As to the alleged third or intermediate doctrine, I do not think there is any such. I do not think it statable in principle. For on reading and re-reading the purely obiter dicta of Lord Fullerton and Lord Jeffrey, I retain the full view that they did not understand themselves as formulating any new rule. They dealt only with an admitted preference for heir male, but emphasised the possibility of exceptional cases. I could quote to show what I mean. But I think Lord Fullerton in particular, and also Lord Jeffrey, have only to be carefully read to see that their views as to the inherent nature of arms are substantially (though, of course, less developed) those of I I ord Sands seventy-one years later.

    I think I am. now in a position to sum up shortly my views on what, after all, I think is not such a recondite or difficult question as it was made to appear.

    We are in search of a presumption or inference to be applied to the law of succession to an ancient coat of which no proved user or holder thought fit to obtain an entry in the Register of All Arms down to the year 1909. The destination, which is to be presumed from the beginning to have been explicit or implicit in the use by the ancient ancestors in succession to one another, must have been either a destination to the heirs male of the original obtainer of the honour from the Crown, or to his heir of line in preference to his heir male, whenever the direct line of descent or some secondary line of descent had end in a female. For my part, the suggestion of an intermediate view on the lines of Lord Jeffrey, to which Mr Stevenson seemed, prior to his successful pleading in the Seaforth [1922 S. C. (H. L.) 39] case, to yield a reluctant assent, (toes not commend itself as a third possibility. Such an intermediate view could never, ill illy opinion, have been competently represented [700]
    in an assumed destination of arms at all. That alone seems to me to put the socalled Jeffrey view out of the case. I am not impressed by it at all. But more, as has appeared, I do not think it was advanced ,is a possible third view, but concerned merely a rough  résumé of the considerations which in the opinions of Lord Fullerton and himself might competently serve to displace the rule regarded by both as most suitable to the inherent nature of arms. Disposing thus of " the Lord Jeffrey view," there is the choice between the remaining two rules or presumptions. I have, for many reasons indicated in my opinion, reached the conclusion that a rule of preferential descent to heir of line, exclusive of heirs male, is not an acceptable solution, and is not in accordance with the vast preponderance of precedent to be found in the books and also the vast bulk of examples in the Register. Therefore, it must be heir male of the ancient family that is, generally, the object of the search. Lastly, I am not of opinion that in any wise at all comparable to the rules of intestate succession in either heritage or moveables is the rule an inflexible rule. But I accept, in the words of Lord Sands, the view that the presumption, being as it is no more than a presumption, may be in certain cases rebutted, and that a Court of arms might from certain circumstances infer that the ancient line of succession indicated favoured female succession. Such cases, however, are, in the words of Lord Sands, exceptional cases.

    What remains to say, may be short. If the presumption is held to apply here in its entirety, the Commander Henry Hugh Maclean would be entitled to the matriculation which he seeks, in completely undifferenced form, of the ancient blazonment in question : Miss Catriona would equally, pending her present condition and status, be entitled to be entered as bearing the same ancient arms undifferenced ; but, as we are for reasons assigned advised not to trespass upon the ground (relegated to the future) as to her or their rights, after she may espouse a gentleman, armigerous or non-armigerous, and may have issue, (a) the warrant for such entry in her name would avoid all reference to such eventualities, and (b) her right would not be a preferable right to the undifferenced arms, but a " courtesy " right meantime.

    III. Your Lordships, I am aware, have come to the conclusion that the onus resting on Miss Catriona to displace the general presumption by bringing to bear circumstances in the nature of possession of family dignities sufficient for that purpose, has been successfully discharged. I understand that the principal, but not the only, item in that demonstration, is taken to be the (very nearly actual) possession of the remaining nucleus of the barony and estates with the mansionhouse or messuage.

    I would tread very delicately, if I may, here. For I am genuinely unwilling in such a  matter---a matter not capable of being reduced to an exact rule or explicit requirement, a matter of preference to a dignity or honour---to indicate anything amounting to a dissent from the verdict of a Court of heraldry. While that is so, it would hardly,  be fair not to point to a circumstance which makes the decision a [701] very fine one. The estates do not come to Miss Catriona by virtue of any ancient rights nor is her succession in any wise among dignities flowing direct from the Crown. They come to her merely by the free will of her father. I find it difficult to get away from the fact that the two authentic Crown rights to the barony and estate proved in process and excerpted are (a) the extract Crown charter in favour of John MacCarlach dated 18th  October 1542 and (b) instrument of easing in favour of Allan Maclean of Ardgour as heir male of John MacCarlach dated 1st September 1619 and recorded 20th September 1619. Both those documents on which the estates must have been possessed from 1542 to 1930, contain tailzied this clear destination-" et heredibus suis masculis de ~pore suo legitime procreatis seu procreandis, Quibus deficientibus, suis legitimis et propinquioribus heredibus masculis quibuscunque, Quibus omnibus deficientibus dictis Johannis assignatis." In other words, heirs male whatsoever, substituted to heirs male of the body and then a final gift to assignees, totally ignoring heirs female of line. It may be the case that beyond this taiIzied destination (in the old original sense) there was also a new and strict entail. But Miss Catriona has not proved that (if so) it varied the old tailzie. At any rate, the possibility of breaking such entail only emerged in the year 1848. It was not taken advantage of till 1901-2.  And finally there was no evacuation of the old heritable destination which I have quoted till J. A. H. Maclean's will became operative in 1930.

    Your Lordships, if I understand aright, would agree that, if this of his had carried the barony to a stranger or to any other relative than an heir of line or heir male, it would be incompetent for a holder of arms by succession to destine these arms away to such stranger or other relative ; but are prepared, in the circumstances of this case, to hold that even a possession so obtained may outweigh a presumption for which there is otherwise little substantive support, other than the Recognition " question by the clan and the chief.

    I have done what I can to indicate slightly, without pressing it to a strict dissent, how my own mind would have inclined to regard the question.

    Finally, may I say this-that I do not regard the position of the other petitioner as being one which forbids him the use of the so-much desired ancient arms, or compels him (against his will) to take some old arms of a cadet of the Duart family. I think he is clearly entitled upon the judgment to be pronounced to have the old arms with a " difference "-such a difference, if there be one appropriate, as win best indicate his high position in the family hierarchy of nearest heir male, whose right is only in a sense subordinated to the life interest of a direct heir of line.

    LORD JAMIESON.---In these cross petitions both parties claim right to the arms matriculated in 1909 by the late Alexander John flew Maclean of Ardgour. The petitioner Miss Maclean of Ardgour, his eldest (laughter, claims as his heiress and as lineal heir and representative of [702] her noble and armigerous house or family of Maclean of Ardgour. The' petitioner Commander Maclean claims as heir male and as head, chief,! and representative of said family.

    In his petition for matriculation the late Ardgour represented that he and his ancestors, proprietors of the estate of Ardgour, had borne certain armorial ensigns from a period anterior to the passing of the Act of Parliament, 1672, cap. 47, but that they had never been recorded in the Public Register of All Arms and Bearings in Scotland in terms of the statute, and it was the arms so represented to have been borne that the Lord Lyon granted warrant to matriculate. The warrant being one for matriculation of these ancient arms, and not a new grant, contained in accordance with the usual practice no destination.

    Miss Maclean of Ardgour in her petition asks findings that she is entitled to substantive possession of the arms so matriculated, to have the complete armorial achievement matriculated in her own name and to exclude any other person, save her husband, and her daughters, sisters and aunts (on lozenges) derivatively from using same. She also asks that it should be stated in the matriculation that the arms may be borne by any husband of hers (bearing the name " Maclean of Ardgour ") by courtesy, and by her descendants (other than her descendant succeeding to the chief arms) and collateral branches of her family with proper differences. Lyon has so far given effect to what she asks by finding that as heir of line of her father she is entitled severally with her sisters to matriculate the arms. He also finds her entitled to have a grant of supporters as for her father, but no question arises as to this. Lyon has at this stage declined to deal with the rights of any husband she may marry, and he says in his opinion that such will be decided when the occasion arises and he petitions for arms. Further, in his opinion he says that her male descendant on succeeding her will matriculate the crest and helmet and arms jointly with his father's arms and crest. Lyon further says that the arms recorded by the late Ardgour do not indicate that he was a cadet of Dow art and that he is unable to say how the, form used by the Ardgour family arose. They first appear on the seal of Alexander Maclean of Ardgour circa 1793, but being registered by the late laird they became his arms in accordance with the statute. He has declined to make certain findings asked, including inter alia " that the arms statutorily determined by Lyon on 20th July 1909 to be the true and unrepealable rule of the arms of Maclean of Ardgour are the 'chief,' ' principal or 'absolute ' arms of the house or family of Maclean of Ardgour."

    In Commander Maclean's petition, Lyon has found him entitled to have arms recorded by him in 1933 deleted from the register, in respect that they -are not the ancient and historical arms of the Macleans of Ardgour, and that arms may be matriculated of new "n his name as Mae Mhic Eoghainn, either in respect of ancient user or as a cadet of the family of Maclean of Dowart, such arms to be afterwards adjusted. Ile has refused warrant to allow him to matriculate the arms matriculated. by the late Ardgour in 1909.
    [703]
    While Miss Maclean of Ardgour has not been granted by Lyon all that she craved in her petition, she is satisfied with his judgment. Commander Maclean, however, has appealed and asks that the interlocutor should be altered to the effect that it should be declared that Miss Maclean of Ardgour's right is only derivative and not substantive, and not transmissible to her heirs, so that the arms would be borne by them undifferenced. In his own petition Commander Maclean also appeals and asks to be found entitled to the 1909 arms and not to those offered by Lyon, which his counsel says he does not want. The matter thus resolves itself into a direct competition between the heir of line and the heir male for right to the 1909 arms, and it was so presented to us in argument.

    Counsel for the heir male claimed that judicial authority was in his favour. The question whether, in the absence of a destination in the grant or in a tailzie, arms descend by the common law of arms to the heir male or the heir of line has been mooted but never settled in the Court of Session. In the latest case, Stewart Mackenzie v. Fraser-Mackenzie,[1920 S. C. 764, at p. 795] Lord Sands expressed a strong view in favour of the heir male. He said "If the heir male were not entitled to the family arms without marks of cadency, there would be very few families in Scotland of more than one or two generations of standing where the heir male and head of the family was entitled to the family arms undifferenced by marks of cadency, and the right to family arms would, in the general case, be vested in somebody who did not bear the family name. The theory, therefore, that the heir of line takes the arms, to the exclusion of the heir male except as a cadet, appears to be untenable. I am considering only the general case." As regards the right of an heiress he agreed with the view of Lyon that she could not transmit her arms to her issue otherwise than as quartered with those of her husband, as, if this were allowed, arms would lose their distinctive character as family marks. He accepted the fact that there were cases where the heir of line had adopted, or resumed, his maternal arms without the paternal quarterings, and he went on to say (at p. 797) " There may perhaps, however, be an exceptional case, where the real heirship of a family for special reasons may be taken as passing down through a female,,, and lie gives as an example a case where a peerage and old family estates so descend. In such circumstances he thought Lyon might competently recognise the right of a person taking through a female to bear the undifferenced family arms as being the real head of the family. Lord Sands's view, therefore, was that in the general case the right to undifferenced arms descended to the heir male in preference to the heir of line, but he did not lay this down as being an inflexible rule. His view -kvas expressed in an examination of the right of the petitioner in that case to the arms which, he maintained, the grant to the respondent had infringed, but the petitioner was neither heir male nor heir of line of the Earls of Seaforth, and the case, [704]
    as presented, did not involve any competition between heir male and heir of line. This is categorically stated in the petitioner and appellant'&, supplementary statement in the House of Lords papers. In his speech Lord Sumner in approaching the question whether the grant obtained. by George Falconer Mackenzie (the father of James Fowler Mackenzie,, who executed the entail in favour of the respondent) contained the Seaforth arms undifferenced, said that he would have been entitled so to matriculate them as chieftain of the Seaforth Mackenzies, and as he was heir male and not a cadet.[1922 S. C. (11. 1, ) 39, at p. 19] But there was no dispute as to this, and 1 do not read the passage as indicating that Lord Sumner's, view was that in a competition the heir male would in every case succeed in preference to the heir of line. It is of some significance that Lord Lyon Balfour Paul, in answering the question remitted to him by the Second Division, as to the armorial rights of George Falconer Mackenzie, said that as heir male of the first Lord Kintail and the first Earl of Seaforth he would, but for the attainder, have succeeded not only to the arms but also to the dignities.

    The case of Cuninghame [11 D. 1139. involved a competition between heir male and heir of line, but it was held that the matter was settled in favour of the latter by the terms of a private Act of Parliament. Certain views were, however, expressed obiter, on the abstract question of whether by the law of arms an heir male or an heir of line is entitled to succeed. The Lord Ordinary, Lord Robertson, formed an impression in favour of the latter, Lord Fullerton declined to assent to the proposition that in every case the heir of line was entitled to succeed, and that the heir male would only take the coat under a brisure or mark of cadency. But as I read his opinion his view appears to have been that arms should go along with dignities or territorial possessions, and that in the event of a peerage or territorial possessions descending (and he puts them alternatively) the arms would go to whichever heir was entitled thereto. Lord Jeffrey, taking what he called the common sense view, expressed the opinion that there was neither an inflexible rule nor a uniform practice, and that the chief armorial dignities should follow the more substantial rights and dignities of the family, and he went on to say " If the heir male succeed to the title and estates, I think it reasonable that he should also succeed to the armorial bearings of the head of the house."

    Differing views on the matter appear to have been held by various Lords Lyon or their deputes. Mr M'Kechnie claimed Mr Tait as being in his favour and referred to his note furnished to the Commissioners of Inquiry in June 1821,[Printed in Heraldry in Scotland, by J. H. Stevenson, ii, 459] and particularly to the passage in which he says " No females (except Peeresses in their own right) are entitled to supporters, as the representation of families is only in the male line." But it is significant that Mr Tait was dealing only with persons considered entitled to supporters. Mr Tyler in the [705] Cuninghame case found in his interlocutor [11 D. 1139, at p. 1141] that, but for the Act of Parliament, the petitioner, as head and chief in the male line, would by the heraldic usage of Scotland, and the practice of the Lyon Court, have been entitled to carry the arms of the two families of Cunyngham and Dick quarterly, without brisure or mark of cadency. Such finding appears inconsistent with the fact that in 1829 he had granted authority not merely to the heir of line (there the eldest heir-portioner) but to her husband and the heirs of the marriage to bear the plain arms of both families quarterly. It may be noted, however, that he then refused supporters, on the ground that such distinction passed, not to the heir of line but to the nearest heir male of the family, a view which coincides with that of Mr Tait. The view of Lord Lyon Burnett was that heritages of all kinds, including alike lands and honours, descend at common law to heirs of line, not heirs male. [The Red Book of Monteith Reviewed, p. 49 Going to more ancient times the excerpt from the MSS of Sir David Lindsay of the Mount,[MSS. 31.3.20 (Denmiln  Collections)] contained in the print, seems to bear that in his opinion a woman, if an heiress or next of blood, in the sense of heir of line, might not only bear her ancestors' coat but transmit it to her heir. Finally, Sir James Balfour Paul in the Stewart Mackenzie case, seems to sum up the views of the Lyons from time to time when he stated that in practice each case had been decided on its own merits.[1920 S. U. 764, at 1). 770]

    The peerage cases, and particularly that of Glencairn,[1 Macq. 444.]were relied on on behalf of Commander Maclean. I am not prepared to attach too great weight to the decisions of Committees of Privileges. They are not binding as decisions of a Court and in particular on such a question of succession to arms as arises in the present case, and I think there is great weight in the criticism of Burnett that motives of expediency entered into their decisions.[The Red Book of Monteith Reviewed, pp. 51-52]

    Turning to the text writers, Sir George Mackenzie, although he does not discuss the respective rights of heir male and heir of line, appears to contemplate at least the possibility that there may be a right of succession in the latter, as when arms " are given to a man, or to his posterity, then his successors who are descended of him, do carry the arms, and have right thereto, and that though they renounce to be heirs."[The Science of Heraldry, ch. xxi.] It is of some significance that the learned author uses the expression " successors." He in no way limits the succession to heirs male, and he immediately afterwards deals with the rights of daughters, regarding which he disagrees with the view of the doctors. And while lie goes on to say that no man can bear his mother's arms (by which I think he means alone, without being quartered with his father's, as in a subsequent passage he says the children of a man who marries an heiress quarter their father's and mother's arms [Ibid. ch. xxiv] he makes an [706] exception where it is provided by paction or testament that they must be borne as a condition of succession, but only if the Prince consents. Further, he deals with the case of estates being entailed to the eldest daughter, she marrying one who shall bear the name and arms, and he contrasts such a case with one where a disposition of lands is granted to a more stranger, not on condition that he should marry a daughter but that he should bear the name and arms. In the former case he says the children may certainly bear the arms " for she was heiress herself," signifying that she has right to the arms qua heiress and not merely qua disponee.[The Science of Heraldry, ch. xxi.] Nisbet also notes an exception in the case of descendants of a daughter, if she be an heiress. There are undoubtedly many. instances in Scotland, and we were referred to a number of them, where the principal family arms have descended through an heiress. There are also many where the heir male has succeeded to or adopted them in preference to the heirs of line. I do not propose to examine any of them in detail, as I accept the note of warning given by Stevenson,[Heraldry in Scotland, ii, 353] that in many cases we are imperfectly acquainted with the facts, and are unaware of whether or not there was any competition or objection raised. Seton 3 says that, in the absence of any very distinct authority on either side, it does not appear unreasonable to argue from analogy, and to adopt the guidance of the common law of Scotland which regulates the succession to lands and dignities, and he goes on to say that, failing male issue, where there happens to be more than one daughter preference is given to the eldest, her seniority conferring certain important privileges. He summarises the position thus: " Although we originally entertained a pretty strong opinion in favour of the heir male, we must candidly acknowledge an increasing tendency to the opposite conclusion." Stevenson concurs in Seton's view.[Law and Practice of Heraldry, p. 349]

    No real assistance can, in my opinion, be derived from a consideration of the position in the early days of heraldry. Sir George Mackenzie says that arms began and grew with the feudal law, and there is no reason to suppose that the law of arms did not develop alongside that law. On the contrary, it is clear that it did. Originally, no doubt, they were carried by men alone, and one of their purposes was to distinguish knights on the field of battle; but there were other purposes. Mackenzie gives twenty reasons for the invention of the art of heraldry. They include, the distinguishing of friends from enemies, the instructing of descent by blood, and, I quote, "Arms are also most necessary for signing Articles of Peace among Princes, and contracts and other writs among private persons; and by them also Knights and Warriors did find out one another in battle and tilting." [The Science of Heraldry, ch. i Stevenson quotes Bonet as saying that the use of arms on seals was an even greater reason for preserving diversity in arms than the differencing [707] of one man from his neighbours.'[Heraldry in Scotland, i, 31] So that even as early as the fourteenth century we find a noted writer expressing the view that the uses of heraldry in peace were more important than on the field of battle.

    If I am right in thinking that the law of arms has developed in step with the feudal law, there is nothing to prevent aims descending to a female, if she be an heiress. The right to them is a heritable right, and on the analogy of the law of succession they would descend to the heir of line in preference to the collateral heir male. On the other hand, there is very great weight in the reasoning of Lord Sands for the view that the heir male should be preferred, in order to preserve the arms in the family and prevent their passing into another family or being lost on the marriage of a female.. I cannot, however, regard either of these considerations as conclusive on one side or the other, although, I think, in the absence of other considerations, it may fairly be said that on the balance of reasoned opinion there is a presumption in favour of the heir male. But it cannot be laid down as an abstract principle that by the common law of arms there is any inflexible rule that either a collateral heir male or the heir of line is in every case entitled to succeed. Each case then must, as Lord Lyon Balfour Paul says has been the practice, be determined on its own merits, and in determining whether there are circumstances to rebut the presumption in favour of the heir male, the safe course to adopt appears to me to be to pay regard to Lord Jeffrey's view, that the chief armorial dignities should follow the more substantial rights and dignities of the family.

    Commander Maclean claims to have these in respect he has been recognised by the Clan Maclean Association as the hereditary chieftain of the Ardgour branch of the clan and has in his possession certain family silver and portraits and other heirlooms. Had such a question arisen some centuries ago, and recognition as chieftain or head of a branch had been given to a collateral heir male by the members of a highland clan, I think that would have deserved great weight. But I cannot attach the same weight to the determination of the council of a present day clan association, advised, no doubt, by their secretary, a solicitor in Glasgow, and approved by way of resolution at an annual general meeting of the association. Nor can 1 attach importance to the fact that he was selected to take a leading part at certain functions at Quart, as this, I think, merely followed on the determination of the council of the association. As regards the silver and heirlooms, these came into his possession by the merest chance.

    Commander Maclean has no connection with the estates of Ardgour. On the other hand, Miss Maclean of Ardgour has been connected with them all her life and under her father's will succeeds to them. It was on the representation that he and his ancestors, proprietors of the estate of Ardgour, had borne the arms that he matriculated them in 1909, and [708]  I cannot suppose that, had it been competent for him to obtain a, destination when doing so, such would have been one allowing the arms to be separated from the territorial possessions. It was argued that the estates had been held under an entail to heirs male but that, in my opinion does not alter the position, as at the time of the matriculation of his arms the estates had already been disentailed in 1902. The matriculation was one of ancient arms, but there is no evidence that there was ever a grant. On the contrary, the use of a number of coats would point to their having been adopted and used without any grant, and therefore there is no room for the presumption which might have arisen, had there been one, that the arms were destined to follow the entail.

    The matter is necessarily to some extent one of impression, and my view is that the possession of the baronial estates outweighs such dignities as the heir male possesses. The retention of armorial distinctions with family territorial possessions descending to the heir of line is in consonance with the view of Lord Fullerton in Cuninghame.[11 D. 1139, atp. 1151]

    I have dealt with the case as it was presented to us in argument as involving a direct competition between the rival claimants for the arms matriculated by the late Ardgour in 1909. Other considerations appear to have entered into the judgment of Lyon, and in particular the question whether these arms were the ancient and historical arms of the Ardgour branch of the clan. He says they are not, and he appears to recognise the right of Commander Maclean, as heir male, and Mac Mhic Eoghainn, to what he regards as the ancient and historical arms, while he finds Miss Maclean of Ardgour entitled to her father's arms. Whether or not the latter were the ancient and historical arms was not raised before us. It is the right to the arms matriculated in 1909 alone that we have to deal with, and the question, as I view it, is whether Lyon has erred in law in pronouncing with regard to these the interlocutors which he has done. I think it is impossible to say that he has, and in my opinion both appeals should be dismissed.
     

    Final Interlocutor (18 July 1941)

    [710] The Court pronounced the following interlocutor :-" Appoint the conjoined petitions to be put to the Summar Roll for bearing in order to enable an interlocutor to be adjusted and for the purpose of disposing of all questions of expenses."

    The conjoined causes were again heard in the Summar Roll on 15th and 16th July 1941 for the purpose of adjusting findings of fact and in law.

    On 18th July 1941 the following interlocutor was issued, signed by the Lord Justice-Clerk in presence of a quorum:

    The Lords having considered the records in the appeal, proof, productions and whole process in the conjoined petitions against the two interlocutors dated, both, 19th December 1938, and having heard counsel for the parties, Recall the finding of' the Lord Lyon that craves 1 and 2 and 4 to 9 on pages 4 and 5 of the closed record are [711] admitted by the parties, and in lieu thereof Find that craves 1, 4 to 7 and 9 on said pages are admitted by the parties, and Further Find in Fact (1) that, by petition m the Lyon Court under date 20th May 1909, Alexander John Hew Maclean of Ardgour, on the representation that he and his ancestors, proprietors 'of the estate of Ardgour, had borne certain armorial ensigns from a period anterior to the passing of the Act of Parliament 1672, c. 47, but that the same had never been recorded in the Public Register of all Arms and Bearings in Scotland in terms of said statute, prayed that said arms might be recorded in the said Public Register ; (2) that, following thereon on 20th July 1909, arms were matriculated therein in name of the said Alexander John Hew Maclean of Ardgour as follows :-Quarterly, first, Argent, a lion rampant, Gules, armed and langued Azure; second, Azure, a castle triple-towered Argent, masoned Sable, windows portcullis and flags Gules ; third, Or, a dexter hand couped fesswise Gules holding a cross crosslet fitchée Azure ; fourth, Or, a galley, sails furled, oars in saltire Sable, flagged Gules, in a sea in base Vert a salmon Argent. Above the shield is placed a helmet befitting his degree with a Mantling Gules doubled Argent, and on a Wreath of his Liveries is set for Crest a branch of laurel and cypress in saltire surmounted of a battle-axe in pale, all proper and in an Escrol over the same the motto " Altera Merces " ; (3) that the said matriculation contained no destination of the said arms beyond the possession of the matriculator thereof, and that no ancient destination was put in proof ; (4) that at the date of said matriculation the said Alexander John Hew Maclean, as 16th laird of Ardgour, held the lands of Ardgour (excepting a portion thereof which had been sold in 1859) as fee simple proprietor, he having disentailed them by instrument of disentail dated' 7th December 1901, and recorded in the General Register of Sasines, etc., on 18th February 1902 ; (5) that the said Alexander John Hew Maclean died on' 27th May 1930; (6) that the petitioner Catriona Louise Maclean is the eldest daughter and eldest heir portioner and heir of line of the said Alexander John Hew Maclean; (7) that in terms of the trust disposition and settlement of the said Alexander John Hew Maclean, dated 23rd February 1920, and registered in the Books of Council and Session on 9th June 1930. the said petitioner became entitled to succeed to the said lands of Ardgour (with the exception of the portion sold as aforesaid) on attaining the age of 21 years, and that she has now attained that age ; (8) that the said petitioner resides at Ardgour and has done so since infancy; (9) that the said lands of Ardgour are burdened with bonds amounting to £16,400, and also a bond of annuity [712] for £500 in favour of the widow of the said Alexander John Hew Maclean; (10) that the annual rental of the said lands as entered in the Valuation Roll is £1300; (11) that between 1542 and 1930 the lands of Ardgour, so far as they were held by the rightful Maclean heirs thereto, were held under deeds containing tailzied destinations, the destination in the last of which, dated Bath November 1873, was only evacuated by the said trust disposition and settlement of Alexander John Hew Maclean, and that there is no evidence that at any time after 1542 and before 1930 they were held upon a destination to heirs general ; (12) that there are numerous instances in the later history of the Scottish clans of chieftains holding the headship of a clan after the ancestral territorial possessions have been forfeited or otherwise lost ; (13) that the patronymic of the family of Maclean of Ardgour is Mac Mhic Eoghainn, which means the son of the son of Hugh ; (14) that the Hugh referred to in the patronymic as the eponymus of the family was the direct ancestor of both petitioners, and was killed at the battle of Bloody Bay about 1482, displaying his armorial bearings upon his galley ; (15) that one of the principal functions of the bearer of the patronymic was to lead his family and retainers in battle on land and sea; (16) that it was conceded that the petitioner Henry Hugh Maclean was entitled to use the said patronymic; (17) that the petitioner Henry Hugh Maclean is a second cousin of the late Alexander John Hew Maclean, being descended by direct male descent from a common great grandfather, Alexander Maclean, 13th of Ardgour, as appears from the genealogical tree, No. 36 of process, in the petition at his instance; (18) that the said petitioner is the heir male of the said Alexander John flew Maclean and of the said common ancestor; (19) that the said petitioner is a retired Lieutenant-Commander in the Royal Naval Reserve, and that, after spending most of his life at sea, he retired in 1908, but returned to sea for service with the Royal Naval Reserve during the war of 1914-18 ; (20) that in 1908 he succeeded, as heir of entail to his brother, to the entailed estate of Lazonby in the county of Cumberland ; (21) that he now resides in the county of Hampshire; (22) that prior to 1930, when the destination was evacuated as aforesaid, he was one of the persons contingently entitled to succeed to the lands of Ardgour under the entail of 1873, but otherwise has had no connection with the said lands; (23) that he has in his possession certain valuable moveable properties held by former heads of the family prior to the year 1855 ; (24) that these moveable properties consisted of (a) family portraits, including a Raeburn and a, Gainsborough, (b) Jacobite relies, and (c) silver plate, the earliest dated piece marked 1719, much of which plate bore the Maclean armorial crest ; (25) that, [713] according to family tradition,, these so-called heirlooms, which till then had been preserved in the mansionhouse of Ardgour, were sent from Ardgour to Henry Dundas Maclean, a younger son, who died in 1863, and had some time previously acquired the said estate of Lazenby, and that by his father the said Alexander Maclean 13th of Ardgour, because he was afraid that his heir Alexander Maclean, afterwards 14th of Ardgour, being very extravagant, might sell them ; (26) that it is not proved otherwise than by said tradition why the foresaid moveables went to Lazenby in England, and, in particular, it is not proved that their transfer to Lazonby involved in any way a recognition by any person of the said Henry Dundas Maclean as superior representative of the armigerous family of Ardgour, or that these articles were heirship moveables or heirlooms; (27) that amongst the moveables held by the Ardgour trustees in terms of the settlement of the said Alexander John Hew Maclean of Ardgour for behoof of the person who shall succeed to the fee of the estate of Ardgour, and to which the said Catriona Louise Maclean has now become entitled, is the old family seal of arms, emblazoned with the escutcheon as matriculated in Lyon Register on 20th July 1909; (28) that the petitioner Henry Hugh Maclean has been recognised as chieftain of that branch of the clan Maclean which is known as the Ardgour branch by the Clan Maclean Association, the only organised body of Macleans now in existence, after representations made to that Association by both petitioners, by resolution of the said Association at their annual gathering in October 1935, for the reasons stated in No. 32 of the process in his petition, and that at a gathering of Macleans organised by the said Association in celebration of the centenary of the late chief of the clan Maclean, Colonel Sir Fitzroy Donald M'Lean of Duart, lie, as senior cadet and chieftain of Ardgour, made a presentation to the said chief of a silver cup : Recall the following finding in law of the Lord Lyon King of Arms in his interlocutor dated 19th December 1938 in the petition at the instance of the said Catriona Louise Maclean, namely-' Finds that the petitioner Miss Catriona Louise Maclean of Ardgour as heir of line of her father is entitled severally with her sisters to matriculate the arms matriculated by Alexander John Hew Maclean of Ardgour on 20th July 1909,' and substitute therefor the following finding in law-Find that the petitioner Catriona Louise Maclean of Ardgour is entitled as of right to matriculate, undifferenced and without brisure or mark of cadency, the arms as matriculated by the said Alexander John Hew Maclean of Ardgour on 20th July 1909 in the manner appropriate to her sex ; Find further in law that the petitioner Henry Hugh Maclean is not entitled to matriculate the said arms, undifferenced and without [714] brisure or mark of cadency ; Quoad ultra and in respect neither petitioner took objection to the other findings of the Lord Lyon, in his interlocutors of date 19th December 1938 in both petitions with regard to the respective rights. of the petitioners, Refuse the appeals against the said interlocutors and decern; Find the petitioner Henry Hugh Maclean liable to the petitioner Catriona Louise Maclean in the expenses of the appeals up to and including 27th March 1941, and remit the account thereof when lodged to the Auditor to tax and to report to this Court Quoad ultra find no expenses due to or by either party Remit the conjoined petitions to the Lord Lyon King of Arms to proceed as accords in the petition of Catriona. Louise Maclean."
     
     

    Scottish Patents of Arms

    Patent of Arms to John Maxwell lord Herries, 1567

    Stevenson (1914, p. 121)

    `TWILL ALL AND SINDRIE quhome it efferis quhais knawlege thir Pntis salcum Greting In god evirlesting We Shir Robert forman of Luthrie Knicht Lyoun King of armes with our brithir herauldis of the realme of Scotland being requirit be the richt honorable johnne lord maxwell of hereiss to assigne and gif unto him sic armes In mettaill and culloure as maist deulie suld appertene to him and his posteritie as become us of our office to do QUHAIRFORE we having respect to thais thingis that appertenit hes assignit and assignis to him quarterlie the first and thrid silver ane saulter sable with ane Lambeaw of thre feitt gulis secund and ferde silver thre hurtcheonis sable with the beraris of the scheilde helme Tymmerall and Detoufl as heirunder Is Depaintit quhilk he and his posteritie may lefullie beir without reproche Quhilk We testifie be thir Pntis Subscrivit be Marchemont hairauld our clerk of office quhairunto oure seile of office is appensit At Edinburgh the Secund Day of aprile the zeir of god ane thowsand fyve hundreth thre score sevin zeiris.

    (Signed)

     `ADAME  M'CULLOT

    mr'chemont hairauld, clerk of ye office
    of Armes of Scotland.'

    (Dorso.) 'Armes of the hous of herreis.'

    Grant of Arms to the Royal Burgh of Aberdeen, 1674

    Stevenson (1914, p. 121)

    To all and sundrie whom it effeirs. I Sir Charles Areskine of Cambo, Knight and Baronet, Lyon, King of Arms ; Considering, that by several Acts of Parliament, as well of Our dread Soveraign Lord, Charles the Second, By the Grace of God, King of Scotland, England, France, and Ireland, Defender of the Faith ; as of His Majestic's Royal Predecessors : especially, by the twenty one Act of the third Session of this Current Parliament, I am impowered to visit the whole Arms and Bearings within this Kingdom, and to distinguish them, and marticulate the same in my Books and Registers, and to give Extracts of all Arms, expressing the Blazoning thereof, under my hand and seal of Office : And which Register, is by the forecited Act, ordained to be respected, as the true and unrepealable Rule of all Arms and Bearings in Scotland,
    to remain with the Lyon's Office, as a publick Register of the Kingdom. Theref r conform to the power given to me by His Sacred Majesty, and according to the tenors of the said Acts of Parliament; I testifie and make known, that the arms of old belonging to the Royal Burgh of Aberdeen, and now confirm'd by me, are marticulate in my said publick Register, upon the day and date of thir presents : And are thus blazoned, viz. The said Royal Burgh of Aberdeen Gives for Ensigns Armorial, Gules, three Towers triple towered, within a double Tressure Counterflowred Argent : Supported by two Leopards propper: The Motto, in an escrol above, Bon-Accord (the Word Bon-Accord was given them by King Robert Bruce, for killing all the English in one night in their Town, their word being that night Bon-Accord). And upon the Reverse of the Seal of the said Burgh is insculped, in a Field Azure, a Temple Argent, Saint Michael standing in the porch mitered and vested propper, with his Dexter hand lifted up to Heaven, praying over three children in a boyling Caldron of the first. and holding in the Sinister a Crosier, Or. Which Arms above-blazoned, I hereby declare to have been, and to be, the true and unrepealable Signs Armorial of the Burgh Royal above-named. In testimony whereof, I have subscrib'd this Extract with my hand; and have caus'd append my Seal of Office thereto.

    Given at Edinburgh, the twenty fifth day of February, and of Our said Soveraign Lord's Reign, the twenty sixth Year, 1674.

    CHARLES ARESKINE, Lyon.
     

    Patent of Arms for Sir James Campbell of Strathcathro, Knight, 1859

    Stevenson (1914, p. 121)

    To All and Sundry whom these presents do or may concern, We Thomas Robert, Earl of Kinnoull, etc. Lord Lyon King of Arms, send Greeting : Whereas Sir James Campbell of Stracathro, in the county of Forfar, Knight, hath by a Petition, of date the twenty-third day of August last ; Represented unto us, That the Petitioner was the second son of James Campbell by Helen his Wife, daughter of John Forrester, That the Petitioner was desirous of bearing and using such Arms as might be indicative of his Name and station in life, And prayed for Our licence and authority accordingly. Know ye therefore that We have devised and do by these presents Assign, Ratify, and Confirm unto the said Sir James Campbell, Knight, and his Descendants, to bear and use in all time coming, with due and proper differences, according to the Laws of Arms, the following Ensigns-Armorial, as depicted upon the margin hereof, and Matriculated of even date with these presents in Our Public Register of all Arms and Bearings in Scotland, viz. : Gyronny of eight Or and Sable, within a Bordure ingrailed Azure ; On a Canton Argent a Galley with her sail furled ,P, flagged, and her oars in action of the second, and upon a Chief of the fourth, three Hunting horns also of the second, viroled of the first and stringed Gules, for maternal difference. Above the shield is placed a Helmet befitting his Degree with a Mantling Gules, doubled Argent, and upon a Wreath of his Liveries is set for Crest a Boar's head, erased, proper, and in an Escroll over the same this Motto ` Ne obliviscaris.'    In testimony whereof these presents are subscribed by James Tytler of Woodhouselee, Esquire, our Depute, and the Seal of Our Office is appended hereunto, at Edinburgh,

    the second day of September, in the year of our Lord One thousand eight hundred and fifty nine.


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    Last modified: May 21, 2001